Guidelines on Freedom

of Peaceful Assembly
Second edition

E COMMISSI
IC O
EN
N
V
Guidelines on Freedom
of Peaceful Assembly
SECOND EDITION

E COMMISSI
IC O
EN
N
V
Published by the OSCE Office for Democratic Institutions and Human Rights (ODIHR)
Al. Ujazdowskie 19
00-557 Warsaw
Poland
www.osce.org/odihr

OSCE/ODIHR 2010
All rights reserved. The contents of this publication may be freely used and copied for
educational and other non-commercial purposes, provided that any such reproduction
is accompanied by an acknowledgement of the OSCE/ODIHR as the source.

ISBN 978-92-9234-785-7

Designed by Homework, Warsaw, Poland

Cover design by Agnieszka Rembowska
Printed in Poland by Sungraf
Guidelines on Freedom
of Peaceful Assembly
SECOND EDITION

Prepared by the Osce/odihr Panel of Experts

on the Freedom of Assembly

Nina Belyaeva
Thomas Bull
David Goldberger
Michael Hamilton
Neil Jarman
Muatar S. Khaidarova
Serghei Ostaf
Vardan Poghosyan
Alexander Vashkevich
Yevgeniy A. Zhovtis

And by the Council of Europes European Commission for Democracy through Law
(Venice Commission)

Warsaw/Strasbourg 2010
Table of Contents

Foreword. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  11

SECTION A. Guidelines on Freedom of Peaceful Assembly . . . . . . . .  14

1. Freedom of Peaceful Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  15

1.1. Freedom of peaceful assembly
1.2. Definition of assembly
1.3. Only peaceful assemblies are protected

2. Guiding Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  15
2.1. The presumption in favour of holding assemblies
2.2. The states positive obligation to facilitate and protect peaceful assembly
2.3. Legality
2.4. Proportionality
2.5. Non-discrimination
2.6. Good administration
2.7. The liability of the regulatory authority

3. Restrictions on Freedom of Assembly. . . . . . . . . . . . . . . . . . . . . . . . . . . .  17

3.1. Legitimate grounds for restriction
3.2. Public space
3.3. Content-based restrictions
3.4. Time, place and manner restrictions
3.5. Sight and sound

4. Procedural Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  17
4.1. Notification
4.2. Spontaneous assemblies
4.3. Simultaneous assemblies
4.4. Counter-demonstrations
4.5. Decision-making
4.6. Review and appeal

5. Implementing Freedom of Peaceful Assembly Legislation. . . . . . . . . . . . . .  19

5.1. Pre-event planning with law-enforcement officials
6

5.2. Costs
5.3. A human rights approach to policing assemblies
5.4. The use of negotiation and/or mediation to de-escalate conflict
5.5. The use of force
5.6. The liability and accountability of law-enforcement personnel
5.7. The liability of organizers
5.8. Stewarding assemblies
5.9. Monitors
5.10.Media access

SECTION B. Explanatory Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  22

1. The Importance of Freedom of Assembly (1-7). . . . . . . . . . . . . . . . . . . . .  23

2. The Regulation of Freedom of Peaceful Assembly . . . . . . . . . . . . . . . . . . .  25

The legal framework (8)
International and regional standards (8-9)
Regulating freedom of assembly in domestic law (10-13)
Freedom of assembly in the context of other human rights and freedoms (14-15)
Principal definitions and categories of assembly (16-24)
Peaceful and non-peaceful assemblies (25-28)

3. Guiding Principles (29). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  35

The presumption in favour of holding assemblies (30)
The states duty to protect peaceful assembly (31-34)
Legality (35-38)
Proportionality (39-45)
Non-discrimination (46-60)
Groups, unregistered associations and legal entities (53)
Minorities (54)
Non-nationals (55)
Women (56)
Children (57-58)
Persons with disabilities (59)
Law-enforcement personnel and state officials (60)
Good administration and transparent decision-making (61-65)
Review and appeal (66)
The liability of the regulatory authority (67)
 7

4. Restrictions on Freedom of Assembly (68). . . . . . . . . . . . . . . . . . . . . . .  50

Legitimate grounds for restriction (69-70)
Public order (71-73)
Public safety (74-75)
The protection of health (76-77)
The protection of morals (78-79)
The protection of the rights and freedoms of others (80-84)
National security (85-86)
Legislation intended to counter terrorism and extremism (87-91)
Derogations in times of war or other public emergency (92-93)
Types of restriction (94)
Content-based restrictions (94-98)
Time, place and manner restrictions (99-100)
Sight and sound (101)
Restrictions imposed prior to an assembly (prior restraints) (102-104)
Freedom of association and freedom of peaceful assembly (105-106)
Indirect restrictions on freedom of assembly (107)
Restrictions imposed during an assembly (108)
Sanctions and penalties imposed after an assembly (109)
Defences (110-112)

5. Procedural Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  63
Advance notification (113-117)
Notification, not authorization (118-121)
Simultaneous assemblies (122)
Counter-demonstrations (123-124)
Exceptions from the notification process (125)
Spontaneous assemblies (126-131)
Decision-making and review processes (132-140)

Part II Implementing Freedom of Peaceful Assembly legislation. . . . . . . . . .  7 3

Introduction (141-143). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  7 3

6. Policing Public Assemblies (144) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  75

A human rights approach to policing (145-146)
Training (147-148)
Policing assemblies general principles of good practice (149-170)
Use of force (171-178)
Liability and accountability (179-184)
8

7. Responsibilities of the Organizer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  90

The organizer (185-186)
Ensuring the peaceful nature of an assembly principles of good practice (187-190)
Stewarding assemblies (191-196)
Liability (197-198)

8. Monitoring Freedom of Peaceful Assembly (199-200). . . . . . . . . . . . . . . .  94

Independent monitors (201-205)
Media (206-210)

Annex A Enforcement of international human rights standards. . . . . . . . . . .  101

Annex B Cases cited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  108

Annex C English-Russian glossary of key terms. . . . . . . . . . . . . . . . . . . . . .  116

Annex D Expert Panel composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  122

Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  125
Foreword

The right to assemble peacefully, together with freedom of expression and freedom of
association, rests at the core of any functioning democratic system. The right to free-
dom of assembly, as well as its limits, are clearly stated in Article 11 of the European
Convention on Human Rights and in the OSCEs 1990 Copenhagen Document. Most
national constitutions and fundamental laws echo these documents or establish simi-
lar principles.

The OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the Coun-
cil of Europes Commission for Democracy through Law (Venice Commission) have been
providing legislative support to OSCE participating states and Council of Europe mem-
bers to assist them in ensuring that their legislation on freedom of peaceful assembly
complies with European and international standards and OSCE commitments. The de-
velopment of these Guidelines is a cornerstone of this assistance, adding to ODIHRs
LegislatiOnline.org database, where lawmakers can obtain good examples from other
countries legislation that can help them frame their own choices.

Existing international standards certainly offer a clear general framework; however, too
little guidance is available to legislators and executive branches on how the exercise of
freedom of peaceful assembly may be regulated in practice at the local and national lev-
el. Good laws, by themselves, cannot mechanically generate improvements in practice.
But even at the legislative level, in a number of cases an inclination towards a so-called
command-and-control approach can be identified, as reflected in more regulations,
more control and more bureaucratic hurdles. Public demonstrations and rallies, for
instance, are not always seen as part of the routine that makes up a pluralistic democ-
racy. In some states, freedom of assembly is still regulated in a way that often results
in its de facto denial.
10

Approaches to regulating the right to freedom of assembly vary greatly across Europe
and the OSCE area. Legislators in different countries have chosen a variety of models.
These stretch from adopting specific laws to govern the exercise of this fundamental right
to introducing provisions across a diverse array of relevant legislation, such as, most im-
portantly, acts pertaining to the police and general administrative law. This prompted
ODIHR, together with the Venice Commission, to develop Guidelines aimed at formulat-
ing thresholds that should be met by national authorities in their regulation of the right.

This document is the second, revised edition of the ODIHR-Venice Commission

Guidelines on Freedom of Peaceful Assembly, which were first published in 2007. The
Guidelines are designed for practitioners in many sectors, i.e., drafters of legislation
and those implementing it, as well as those affected by the implementation. Recogniz-
ing the great diversity of country contexts, the Guidelines do not attempt to provide
ready-made solutions but, rather, to clarify key issues and discuss possible ways to ad-
dress them. Even when the legislative framework is in compliance with European and
international standards and OSCE commitments, challenges to the practical implemen-
tation of those laws persist in the region.

The Guidelines offer a practical toolkit for legislators and practitioners responsible for
implementing laws by drawing on good-practice examples from national legislations in
European and OSCE participating States and the case-law of the ECtHR to illustrate the
various legislative options used to regulate issues pertaining to the freedom of assembly.
The Guidelines are a living instrument. They demarcate parameters for implementation
consistent with international standards and illustrate key principles with examples of good
practice from individual states. We are pleased to publish these Guidelines and hope they
will find many users drafters of legislation, law-enforcement personnel, municipal-gov-
ernment officials, judges, academics and members of civic organizations and count on
them to contribute their expertise and experience in order to further enrich this document.

Ambassador Janez Lenari, Gianni Buquicchio,

Director, President,
OSCE Office for Democratic Institutions Venice Commission
and Human Rights (ODIHR) of the Council of Europe

Introduction

This second edition of the Guidelines on Freedom of Peaceful Assembly, together with
the Explanatory Notes, was prepared by the Panel of Experts on Freedom of Assembly
of the OSCE Office for Democratic Institutions and Human Rights (ODIHR) in con-
sultation with the Council of Europes European Commission for Democracy through
Law (Venice Commission).1 Though set apart here in Section B, the Explanatory Notes
constitute an integral part of the Guidelines found in Section A, and should be read in
concert with them. The second edition of the Guidelines updates the first, published in
2007, in the light of new case law and by drawing on comments and feedback received
by the Panel.

Work on these Guidelines began in 2005, and the initial Guidelines and Explanatory
Notes drafted by ODIHR were developed further over the course of four roundta-
ble sessions held in 2006 in Tbilisi, Belgrade, Almaty and Warsaw, respectively. These
roundtable sessions brought together about 150 participants from 29 OSCE participat-
ing States. The participants came from a diverse range of fields and backgrounds and
included law-enforcement officers and representatives of human rights NGOs, govern-
ment ministers and organizers of assemblies, academics and practicing lawyers. The
document benefitted significantly from this wealth of hands-on experience in a broad
range of contexts. The first edition of the Guidelines has since provided a basis for a
number of Legal Opinions and Legislative Guidelines prepared jointly by the ODIHR
Panel and the Venice Commission.2 Reference to the Guidelines has also been made in
case law of the European Court of Human Rights3 and by UN bodies.4

The Guidelines and Explanatory Notes are based on international and regional trea-
ties and other documents related to the protection of human rights,5 on evolving state
practice (as reflected, inter alia, in the judgments of domestic courts), 6 and on general
12

principles of law recognized by the community of nations. They set out a clear mini-
mum baseline in relation to these standards, thereby establishing a threshold that must
be met by national authorities in their regulation of freedom of peaceful assembly. This
document, however, does not attempt to codify these standards or summarize the rele-
vant case law. Instead, it is illustrated by examples of good practice (measures that have
proven successful across a number of jurisdictions or that have demonstrably helped
ensure that the freedom to assemble is accorded adequate protection).

The legal regulation of freedom of assembly is a complex matter. A wide range of is-
sues, both procedural and substantive, must be considered so as to best facilitate its
enjoyment. Moreover, the approach to regulation varies greatly among OSCE partic-
ipating States from the adoption of a single, consolidated law, to the incorporation
of provisions concerning peaceful assemblies in a number of different laws (including
those governing the powers of law-enforcement agencies, criminal and administrative
codes, anti-terrorism legislation and election laws). Recognizing these differences and
the great diversity of country contexts involved (particularly in relation to democratic
traditions, the rule of law and the independence of the judiciary), this document does
not attempt to provide ready-made solutions. It is neither possible nor desirable to draft
a single, transferable model law that can be adopted by all OSCE participating States.
Rather, the Guidelines and the Explanatory Notes seek to clarify key issues and discuss
possible ways to address them.

In regulating freedom of assembly, well-drafted legislation is vital in framing the discre-

tion afforded to the authorities.7 This requires that governments and those involved in
the drafting of legislation consult with the individuals and groups affected by new laws
or amendments to existing ones (including local human rights organizations) as an in-
tegral part of the drafting process. Often, however, it is not the text of the law that is at
issue but its implementation. Therefore, while these Guidelines and Explanatory Notes
will be of benefit to those involved in the drafting of legislation pertaining to freedom
of assembly, they are also aimed at those responsible for implementing such legislation
(the relevant administrative and law-enforcement authorities) and those affected by its
implementation. The Guidelines and Explanatory Notes are, therefore, primarily ad-
dressed to practitioners drafters of legislation, politicians, legal professionals, police
officers and other law-enforcement personnel, local officials, trade unionists, the or-
ganizers of and participants in assemblies, NGOs, civil society organizations and those
involved in monitoring both freedom of assembly and police practices.

The Explanatory Notes in Section B are not only essential to a proper understanding
of Guidelines in Section A, but also provide examples of good practice, which is what
makes this document special. Part I of Section B (chapters 1-5) emphasizes the impor-
tance of freedom of assembly and sketches its parameters. It outlines the importance
 13

of freedom of assembly (chapter 1), identifies core issues in the regulation of freedom
of assembly (chapter 2), sets out a number of guiding principles that should govern its
regulation (chapter 3), examines the legitimate grounds for, and types of, restriction
(chapter 4), and examines relevant procedural issues (chapter 5). Part II (chapters 6-8)
is more practically focused and examines the implementation of freedom of assembly
legislation. It covers the policing of public assemblies (chapter 6), the responsibilities
of assembly organizers (chapter 7) and the role of the media and independent moni-
tors (chapter 8). Appendix A provides a summary description of a number of regional
and international bodies concerned with the enforcement of international human rights
standards, while Appendix B provides a list of cases cited. A Glossary of Terms defining
the major concepts used in both the Guidelines and Explanatory Notes (with English-
Russian translation) is contained in Appendix C.

These Guidelines and Explanatory Notes can be downloaded from the ODIHR and Ven-
ice Commission websites, as well as from Legislationline.org, ODIHRs online legislative
database (www.legislationline.org), where national legislation on public assemblies
and other related legal materials can also be found.

This second edition of the Guidelines and the Explanatory Notes remains a living doc-
ument, so ODIHR and the Venice Commission continue to welcome comments and
suggestions, which should be addressed to assembly@odihr.pl.
SECTION A

Guidelines on Freedom
of Peaceful Assembly
 15

1. Freedom of Peaceful Assembly

1.1 Freedom of peaceful assembly is a fundamental human right that can be enjoyed
and exercised by individuals and groups, unregistered associations, legal entities
and corporate bodies. Assemblies may serve many purposes, including the expres-
sion of diverse, unpopular or minority opinions. The right can be an important
strand in the maintenance and development of culture, such as in the preserva-
tion of minority identities. The protection of the freedom to peacefully assemble
is crucial to creating a tolerant and pluralistic society in which groups with differ-
ent beliefs, practices or policies can exist peacefully together.

1.2 Definition of assembly. For the purposes of the Guidelines, an assembly means
the intentional and temporary presence of a number of individuals in a public place
for a common expressive purpose.

This definition recognizes that, although particular forms of assembly may raise
specific regulatory issues, all types of peaceful assembly both static and moving
assemblies, as well as those that take place on publicly or privately owned premis-
es or in enclosed structures deserve protection.

1.3 Only peaceful assemblies are protected. An assembly should be deemed peaceful
if its organizers have professed peaceful intentions and the conduct of the assem-
bly is non-violent. The term peaceful should be interpreted to include conduct
that may annoy or give offence, and even conduct that temporarily hinders, im-
pedes or obstructs the activities of third parties.

2. Guiding Principles
2.1 The presumption in favour of holding assemblies. As a fundamental right, freedom
of peaceful assembly should, insofar as possible, be enjoyed without regulation. An-
ything not expressly forbidden by law should be presumed to be permissible, and
those wishing to assemble should not be required to obtain permission to do so. A pre-
sumption in favour of this freedom should be clearly and explicitly established in law.

2.2 The states positive obligation to facilitate and protect peaceful assembly. It is the
primary responsibility of the state to put in place adequate mechanisms and pro-
cedures to ensure that the freedom is practically enjoyed and not subject to undue
bureaucratic regulation. In particular, the state should always seek to facilitate and
protect public assemblies at the organizers preferred location and should also en-
sure that efforts to disseminate information to publicize forthcoming assemblies
are not impeded.
16

2.3 Legality. Any restrictions imposed must have a formal basis in law and be in con-
formity with the European Convention on Human Rights and other international
human rights instruments. To this end, well-drafted legislation is vital in framing
the discretion afforded to the authorities. The law itself must be compatible with
international human rights standards and be sufficiently precise to enable an indi-
vidual to assess whether or not his or her conduct would be in breach of the law,
as well as the likely consequences of any such breaches.

2.4 Proportionality. Any restrictions imposed on freedom of assembly must be pro-

portional. The least intrusive means of achieving the legitimate objective being
pursued by the authorities should always be given preference.

The principle of proportionality requires that authorities do not routinely impose

restrictions that would fundamentally alter the character of an event, such as re-
locating assemblies to less central areas of a city.

A blanket application of legal restrictions tends to be over-inclusive and, thus, will

fail the proportionality test, because no consideration has been given to the spe-
cific circumstances of the case.

2.5 Non-discrimination. Freedom of peaceful assembly is to be enjoyed equally by

everyone. In regulating freedom of assembly the relevant authorities must not dis-
criminate against any individual or group on any grounds.

The freedom to organize and participate in public assemblies must be guaran-

teed to individuals, groups, unregistered associations, legal entities and corporate
bodies; to members of minority ethnic, national, sexual and religious groups; to na-
tionals and non-nationals (including stateless persons, refugees, foreign nationals,
asylum seekers, migrants and tourists); to children, women and men; to law-en-
forcement personnel; and to persons without full legal capacity, including persons
with mental illnesses.

2.6 Good administration. The public should be informed which body is responsible
for taking decisions about the regulation of freedom of assembly, and this must
be clearly stated in law. The regulatory authority should ensure that the general
public has adequate access to reliable information about its procedures and oper-
ation. Organizers of public assemblies and those whose rights and freedoms will
be directly affected by an assembly should have the opportunity to make oral and
written representations directly to the regulatory authority. The regulatory proc-
ess should enable the fair and objective assessment of all available information.
Any restrictions placed on an assembly should be communicated promptly and in
 17

writing to the event organizer, with an explanation of the reason for each restric-
tion. Such decisions should be taken as early as possible so that any appeal to an
independent court can be completed before the date provided in the notification
for the assembly.

2.7 The liability of the regulatory authority. The regulatory authorities must comply
with their legal obligations and should be accountable for any failure procedur-
al or substantive to do so. Liability should be gauged according to the relevant
principles of administrative law and judicial review concerning the misuse of pub-
lic power.

3. Restrictions on Freedom of Assembly

3.1 Legitimate grounds for restriction. The legitimate grounds for restriction are pre-
scribed in international and regional human rights instruments. These should not
be supplemented by additional grounds in domestic legislation.

3.2 Public space. Assemblies are as legitimate uses of public space as commercial activ-
ity or the movement of vehicular and pedestrian traffic. This must be acknowledged
when considering the necessity of any restrictions.

3.3 Content-based restrictions. Assemblies are held for a common expressive purpose
and, thus, aim to convey a message. Restrictions on the visual or audible content
of any message should face a high threshold and should only be imposed if there
is an imminent threat of violence.

3.4 Time, place and manner restrictions. A wide spectrum of possible restrictions
that do not interfere with the message communicated is available to the regulatory
authority. Reasonable alternatives should be offered if any restrictions are imposed
on the time, place or manner of an assembly.

3.5 Sight and sound. Public assemblies are held to convey a message to a particu-
lar target person, group or organization. Therefore, as a general rule, assemblies
should be facilitated within sight and sound of their target audience.

4. Procedural Issues
4.1 Notification. It is not necessary under international human rights law for domestic
legislation to require advance notification about an assembly. Indeed, in an open
society, many types of assembly do not warrant any form of official regulation. Pri-
or notification should, therefore, only be required where its purpose is to enable
18

the state to put in place necessary arrangements to facilitate freedom of assembly

and to protect public order, public safety and the rights and freedoms of others.
Any such legal provision should require the organizer of an assembly to submit a
notice of intent rather than a request for permission.

The notification process should not be onerous or bureaucratic. The period of no-
tice should not be unnecessarily lengthy, but should still allow adequate time for
the relevant state authorities to make the necessary plans and preparations to sat-
isfy their positive obligations, and for the completion of an expeditious appeal to
(and ruling by) a court should any restrictions be challenged.

If the authorities do not promptly present any objections to a notification, the or-
ganizers of a public assembly should be able proceed with their activities according
to the terms presented in their notification and without restriction.

4.2 Spontaneous assemblies. Where legislation requires advance notification, the law
should explicitly provide for an exception from the requirement where giving ad-
vance notice is impracticable. Such an exception would only apply in circumstances
where the legally established deadline cannot be met. The authorities should al-
ways protect and facilitate any spontaneous assembly so long as it is peaceful in
nature.

4.3 Simultaneous assemblies. Where notification is provided for two or more unre-
lated assemblies at the same place and time, each should be facilitated as best as
possible. The prohibition of a public assembly solely on the basis that it is due to
take place at the same time and location as another public assembly will likely be
a disproportionate response where both can be reasonably accommodated. The
principle of non-discrimination requires, further, that assemblies in comparable
circumstances do not face differential levels of restriction.

4.4 Counter-demonstrations. Counter-demonstrations are a particular form of simul-

taneous assembly in which the participants wish to express their disagreement with
the views expressed at another assembly. The right to counter-demonstrate does
not extend to inhibiting the right of others to demonstrate. Indeed, demonstrators
should respect the rights of others to demonstrate as well. Emphasis should be
placed on the states duty to protect and facilitate each event where counter-dem-
onstrations are organized or occur, and the state should make available adequate
policing resources to facilitate such related simultaneous assemblies, to the extent
possible, within sight and sound of one another.
 19

4.5 Decision-making. The regulatory authorities should ensure that the decision-mak-
ing process is accessible and clearly explained. The process should enable the fair
and objective assessment of all available information. Any restrictions placed on
an assembly should be communicated promptly and in writing to the event organ-
izers, with an explanation of the reason for each restriction. Such decisions should
be taken as early as possible so that any appeal to an independent court can be
completed before the date for the assembly provided in the notification.

4.6 Review and appeal. The right to an effective remedy entails the right to appeal
the substance of any restrictions or prohibitions on an assembly. An initial option
of administrative review can both reduce the burden on courts and help build a
more constructive relationship between the authorities and the public. However,
where such a review fails to satisfy the applicant, there should be a mechanism for
appeal to an independent court. Appeals should take place in a prompt and time-
ly manner so that any revisions to the authorities decision can be implemented
without further detriment to the applicants rights. A final ruling, or at least relief
through an injunction, should, therefore, be given prior to the date for the assem-
bly provided in the notification.

5. Implementing Freedom of Peaceful Assembly Legislation

5.1 Pre-event planning with law-enforcement officials. Wherever possible, and espe-
cially in cases of large assemblies or assemblies related to controversial issues, it
is recommended that the organizer discuss with the law-enforcement officials the
security and public-safety measures that are to be put in place prior to the event.
Such discussions might, for example, cover the deployment of law-enforcement
personnel, stewarding arrangements and particular concerns relating to the po-
licing operation.

5.2 Costs. The costs of providing adequate security and safety (including traffic and
crowd management) should be fully covered by the public authorities. The state
must not levy any additional financial charge for providing adequate policing. Or-
ganizers of non-commercial public assemblies should not be required to obtain
public-liability insurance for their event.

5.3 A human rights approach to policing assemblies. The policing of assemblies must
be guided by the human rights principles of legality, necessity, proportionality
and non-discrimination and must adhere to applicable human rights standards.
In particular, the state has a positive duty to take reasonable and appropriate
measures to enable peaceful assemblies to take place without participants fear-
ing physical violence. Law-enforcement officials must also protect participants of
20

a peaceful assembly from any person or group (including agents provocateurs

and counter-demonstrators) that attempts to disrupt or inhibit the assembly in
any way.

5.4 The use of negotiation and/or mediation to de-escalate conflict. If a stand-off or

other dispute arises during the course of an assembly, negotiation or mediated di-
alogue may be an appropriate means of trying to reach an acceptable resolution.
Such dialogue although not always successful can serve as a preventive tool to
help avoid the escalation of conflict, the imposition of arbitrary or unnecessary re-
strictions, or recourse to the use of force.

5.5 The use of force. The use of force must be regulated by domestic law, which should
set out the circumstances that justify its use (including the need to provide ade-
quate prior warnings) and the level of force acceptable to deal with various threats.
Governments should develop a range of responses that enable a differentiated and
proportional use of force. These responses should include the development of non-
lethal incapacitating weapons for use in appropriate situations where other more
peaceful interventions have failed.

5.6 The liability and accountability of law-enforcement personnel. If the force used is
not authorized by law, or more force was used than necessary in the circumstanc-
es, law-enforcement personnel should face civil and/or criminal liability, as well
as disciplinary action. Law-enforcement personnel should also be held liable for
failing to intervene where such intervention might have prevented other officers
from using excessive force. Where it is alleged that a person is physically injured
by law-enforcement personnel or is deprived of his or her life, an effective, inde-
pendent and prompt investigation must be conducted.

5.7 The liability of organizers. Organizers of assemblies should not be held liable for
failure to perform their responsibilities if they have made reasonable efforts to do
so. The organizers should not be liable for the actions of individual participants or
for the actions of non-participants or agents provocateurs. Instead, there should
be individual liability for any individual who personally commits an offence or fails
to carry out the lawful directions of law-enforcement officials.

5.8 Stewarding assemblies. It is recommended that the organizers of assemblies be

encouraged to deploy clearly identifiable stewards to help facilitate the holding of
the event and ensure compliance with any lawfully imposed restrictions. Stewards
do not have the powers of law-enforcement officials and should not use force but,
instead, should aim to obtain the co-operation of assembly participants by means
of persuasion.
 21

5.9 Monitors. The independent monitoring of public assemblies provides a vital source
of information on the conduct of assembly participants and law-enforcement offi-
cials. This information may be used to inform public debate and, usefully, can also
serve as the basis for dialogue among government, local authorities, law-enforce-
ment officials and civil society. NGOs and civil society organizations play a crucial
watchdog role in any democracy and must, therefore, be permitted to freely ob-
serve public assemblies.

5.10 Media access. The role of the media as a public watchdog is to impart informa-
tion and ideas on matters of public interest information that the public also has
a right to receive. Media reports can thus provide an otherwise absent element of
public accountability for both organizers of assemblies and law-enforcement offi-
cials. Media professionals should, therefore, be guaranteed as much access as is
possible to an assembly and to any related policing operation.
SECTION B

Explanatory Notes
1. The Importance of Freedom of Assembly

1. Throughout the Guidelines, the term right to freedom of peaceful assembly is

used in preference to that of the right to peaceful assembly. This emphasizes that
any right to assemble is underpinned by a more fundamental freedom, the essence
of which is that it should be enjoyed without interference.8 Participation in public
assemblies should be entirely voluntary and uncoerced.9

2. Freedom of peaceful assembly is a fundamental human right that can be enjoyed

and exercised by individuals and groups, unregistered associations, legal entities
and corporate bodies. It has been recognized as one of the foundations of a func-
tioning democracy. Facilitating participation in peaceful assemblies helps ensure
that all people in a society have the opportunity to express opinions they hold in
common with others. As such, freedom of peaceful assembly facilitates dialogue
within civil society and among civil society, political leaders and government.

3. Freedom of peaceful assembly can serve many purposes, including (but not limit-
ed to) the expression of views and the defence of common interests, celebration,
commemoration, picketing and protest. The exercise of this freedom can have both
symbolic and instrumental significance, and can be an important strand in the main-
tenance and development of culture and the preservation of minority identities. It
is complemented by other rights and freedoms, such as freedom of association,10
the right to establish and maintain contacts within the territory of a state,11 freedom
of movement,12 the right to cross international borders,13 freedom of expression 14
and freedom of thought, conscience and religion.15 As such, freedom of assembly
is of fundamental importance for the personal development, dignity and fulfilment
of every individual and for the progress and welfare of society.16
24

4. The protection of the right to freedom of assembly also underpins the realization of
both social and economic rights (including employment and labour interests) and
so-called third generation rights (such as the right to a healthy environment). Ar-
ticle 12 of the EU Charter, for example, emphasizes the particular importance of the
right to freedom of peaceful assembly and association in relation to political, trade
union and civic matters.17 Furthermore, those who seek to defend and advance so-
cio-economic and developmental interests (properly regarded as indivisible from
civil and political rights) can also rely upon the right to organize, as recognized in
both Article 5 of the European Social Charter18 and in the ILO Convention concern-
ing Freedom of Association and Protection of the Right to Organise (C087).19 The
interpretation of national labour laws should be consistent with these standards.

5. With appropriate media coverage, public assemblies communicate with local and
national audiences and with the world at large. In countries where the media are
limited or restricted, freedom of assembly is vital for those who wish to draw at-
tention to local issues. This communication potential underlines the importance
of freedom of assembly in effecting change.

6. Public assemblies often have increased prominence and significance in the context
of elections, when political parties, candidates and other groups and organizations
seek to publicize their views and mobilize support (see para. 107).20 Legal measures
that are potentially more restrictive than the normal regulatory framework govern-
ing freedom of assembly should not be necessary to regulate assemblies during or
immediately after an election period, even if there is heightened tension. On the
contrary, the general law on assemblies should be sufficient to cover assemblies
associated with election campaigns, an integral part of which is the organization
of public events.21 Open and free political expression is particularly valued in the
human rights canon.

7. In addition to serving the interests of democracy, the ability to freely assemble is

also crucial to creating a pluralistic and tolerant society in which groups with dif-
ferent and possibly conflicting, backgrounds, beliefs, practices or policies can exist
peacefully together. In circumstances where the right to freedom of thought, con-
science and religion is also engaged, the role of the authorities is not to remove
the cause of tension by eliminating pluralism, but to ensure that the competing
groups tolerate each other.22 Furthermore, the European Court of Human Rights
has held that in creating a pluralistic, broadminded and tolerant society, although
individual interests must on occasion be subordinated to those of a group, democ-
racy does not simply mean that the views of the majority must always prevail: A
balance must be achieved which ensures the fair and proper treatment of minori-
ties and avoids any abuse of a dominant position.23
 25

2. The Regulation of Freedom of Peaceful Assembly

The legal framework

8. International and regional standards: The sources of law identified in this section
are among the most important treaties to which ODIHR refers when conducting re-
views of legislation. The international and regional standards concerning freedom
of assembly derive mainly from two legal instruments: the International Covenant
on Civil and Political Rights (ICCPR)24 and the European Convention for the Pro-
tection of Human Rights and Fundamental Freedoms (ECHR),25 and their optional
protocols and protocols, respectively. The American Convention on Human Rights
is also of particular relevance to member countries of the Organization of Amer-
ican States.26 Other relevant treaties include the UN Convention on the Rights of
the Child, the Charter of Fundamental Rights of the European Union and the Con-
vention on Human Rights and Fundamental Freedoms of the Commonwealth of
Independent States (the CIS Convention).27 The key provisions in relation to the
right to freedom of peaceful assembly are reproduced below.

Article 20(1), Universal Declaration of Human Rights

Everyone has the right to freedom of peaceful assembly and
association.28

Article 21, International Covenant on Civil and Political Rights

The right of peaceful assembly shall be recognized. No restrictions
may be placed on the exercise of this right other than those imposed
in conformity with the law and which are necessary in a democratic
society in the interests of national security or public safety, public order,
the protection of public health or morals or the protection of the rights
and freedoms of others.

Article 15, Convention on the Rights of the Child

1. States Parties recognize the rights of the child to freedom of
association and to freedom of peaceful assembly.
2. No restrictions may be placed on the exercise of these rights other
than those imposed in conformity with the law and which are necessary
in a democratic society in the interests of national security or public
safety, public order (ordre public), the protection of public health or
morals or the protection of the rights and freedoms of others.
26

Article 11, European Convention on Human Rights

1. Everyone has the right to freedom of peaceful assembly and to
freedom of association with others, including the right to form and join
trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other
than such as are prescribed by law and are necessary in a democratic
society in the interests of national security or public safety, for the
prevention of disorder or crime, for the protection of health or morals
or for the protection of the rights and freedoms of others. This article
shall not prevent the imposition of lawful restrictions on the exercise
of these rights by members of the armed forces, of the police or of the
administration of the State.

Article 15, American Convention on Human Rights

The right of peaceful assembly, without arms, is recognized. No
restrictions may be placed on the exercise of this right other than those
imposed in conformity with the law and necessary in a democratic
society in the interest of national security, public safety or public order,
or to protect public health or morals or the rights or freedoms of others.

Article 12, Charter of Fundamental Rights of the European Union

1. Everyone has the right to freedom of peaceful assembly and to
freedom of association at all levels, in particular in political, trade union
and civic matters, which implies the right of everyone to form and to
join trade unions for the protection of his or her interests.
2. Political parties at Union level contribute to expressing the political
will of the citizens of the Union.

Article 12, Convention on Human Rights and Fundamental Freedoms

of the Commonwealth of Independent States (the CIS Convention)
1. Everyone shall have the right to freedom of peaceful assembly and to
freedom of association with others, including the right to form and to
join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other
than such as are prescribed by law and are necessary in a democratic
society in the interests of national security or public safety, public order,
public health or morals, or for the protection of the rights and freedoms
of others.
 27

This Article shall not preclude the imposition of lawful restrictions

on the exercise of these rights by members of the armed forces or by
members of the law enforcement or administrative organs of the State.

OSCE Copenhagen Document 1990

[The participating States reaffirm that]:
9.2 [E]veryone will have the right of peaceful assembly and
demonstration. Any restrictions which may be placed on the exercise of
these rights will be prescribed by law and consistent with international
standards.

9. The significance of these treaties and documents derives, in part, from the juris-
prudence developed by their respective monitoring bodies the UN Human Rights
Committee,29 the European Court of Human Rights and the Inter-American Com-
mission on Human Rights.30 This body of case law is integral to the interpretation
of these standards and should be fully understood by those charged with imple-
menting domestic laws on freedom of assembly. It is recommended, therefore, that
governments ensure that accurate translations of key cases are made widely avail-
able.31

10. Regulating freedom of assembly in domestic law: Freedom of peaceful assembly

should be accorded constitutional protection, which ought, at a minimum, to con-
tain a positive statement of both the right and the obligation to safeguard it. There
should also be a constitutional provision that guarantees fair procedures in the de-
termination of the rights contained therein. Constitutional provisions, however,
cannot provide for specific details or procedures. Moreover, where a constitution
does not expressly articulate the principles of legality and proportionality, consti-
tutional provisions relating to freedom of assembly that are of a general nature
can, without further clarification, afford excessively wide discretion to the author-
ities and increase the possibility of abuse.

11. While there is no requirement that participating States enact a specific law on free-
dom of assembly, such legislation can greatly assist in protecting against arbitrary
interference with the right to freedom of peaceful assembly.32 Any such domestic
legislation should confer broadly framed protection on freedom of assembly, and
narrowly define those types of assembly for which some degree of regulation may
be justified. It cannot be overemphasized that, in an open society, many types of as-
sembly do not warrant any form of official regulation. The provisions of a specific
law can also serve as a guide for sound decision-making by regulatory authorities.
28

Consequently, many states or municipal authorities have enacted specific legisla-

tion, in addition to constitutional guarantees, dealing with public assemblies.33 The
purpose of such legislation should never be to inhibit the enjoyment of the consti-
tutional right to freedom of peaceful assembly but, rather, to facilitate and ensure
its protection. In this light, it is vital that any specific law should avoid the crea-
tion of an excessively regulatory or bureaucratic system. This is a real risk in many
countries and has been raised as a particular concern by the Venice Commission.34
Well-drafted legislation, however, can help ensure that freedom of assembly is not
over-regulated.

12. Domestic laws regulating freedom of assembly must be consistent with the inter-
national instruments ratified by the state in question. Domestic laws should also
be drafted, interpreted and implemented in conformity with relevant internation-
al and regional jurisprudence and good practice. The enforcement of such laws
will depend significantly upon the existence of an impartial and adequately trained
police service and an independent judiciary.

13. Furthermore, the rule of law demands legal stability and predictability. Amend-
ments introduced as a response to particular events, for example, often result in
partial and piecemeal reforms that are harmful to the protection of rights and to
the overall coherence of the legislative framework. Those involved in the drafting
of legislation should always consult with those most closely involved in its imple-
mentation and with other interested individuals and groups (including local human
rights organizations). Such consultation should be considered an integral part of
the drafting process. To this end, it may be helpful to place a statutory duty upon
the relevant regulatory authority to keep the law under review in light of practice
and to make considered recommendations for reform if necessary.

Freedom of peaceful assembly in the context of other rights and freedoms

14. It is also essential that those involved in drafting and implementing laws pertain-
ing to freedom of assembly give due consideration to the interrelation of the rights
and freedoms contained in the international and regional standards. The imposi-
tion of restrictions on the right to freedom of peaceful assembly also potentially
encroaches on the rights to freedom of association, expression and thought, con-
science and religion. Where issues under these other rights are also raised, the
substantive issues should be examined under the right most relevant to the facts
(the lex specialis), and the other rights should be viewed as subsidiary (the lex
generalis).35 Significantly, the European Court of Human Rights has stated that
the ECHR is to be read as a whole and that the application of any individual Article
must be in harmony with the overall spirit of the Convention.36
 29

15. The imperative of adopting a holistic approach to freedom of assembly is un-

derscored by the destruction of rights provisions contained in Article 30 of the
Universal Declaration of Human Rights (UDHR), Article 5 of the ICCPR and Arti-
cle 17 of the ECHR.37 As detailed further in paragraph 96, for example, participants
in public assemblies whose advocacy of national, racial or religious hostility con-
stitutes incitement to discrimination, hatred or violence will forfeit the protection
of their expressive rights under the ECHR and ICCPR.

Article 30, Universal Declaration of Human Rights

Nothing in this Declaration may be interpreted as implying for any
State, group or person any right to engage in any activity or to perform
any act aimed at the destruction of any of the rights and freedoms set
forth herein.

Article 5, International Covenant on Civil and Political Rights

(1) Nothing in the present Covenant may be interpreted as implying
for any State, group or person any right to engage in any activity or
perform any act aimed at the destruction of any of the rights and
freedoms recognized herein or at their limitation to a greater extent
than is provided for in the present Covenant.

Article 17, European Convention on Human Rights

Nothing in this Convention may be interpreted as implying for any
State, group or person any right to engage in any activity or perform
any act aimed at the destruction of any of the rights and freedoms set
forth herein or at their limitation to a greater extent than is provided for
in the Convention.

Principal definitions and categories of assembly

For the purposes of the Guidelines, an assembly means the intentional

and temporary presence of a number of individuals in a public place
for a common expressive purpose. 38

16. An assembly, by definition, requires the presence of at least two persons. Nonethe-
less, an individual protester exercising his or her right to freedom of expression,
where the protesters physical presence is an integral part of that expression, should
30

also be afforded the same protections as those who gather together as part of an
assembly.

17. A range of different activities are protected by the right to freedom of peaceful as-
sembly, including static assemblies (such as public meetings, mass actions, flash
mobs,39 demonstrations, sit-ins and pickets)40 and moving assemblies (such as
parades, processions, funerals, pilgrimages and convoys). 41 These examples are
not exhaustive, and domestic legislation should frame the types of assembly to be
protected as broadly as possible (as demonstrated by the extracts from the laws
in Kazakhstan and Finland, below). Recent case law demonstrates the variety of
new forms of protest to which the right to freedom of assembly has been held to
extend. These include mass processions by cyclists 42 and drive-slow protests by mo-
torists, 43 and the case law confirms that the right to freedom of expression includes
the choice of the form in which ideas are conveyed, without unreasonable inter-
ference by the authorities particularly in the case of symbolic protest activities. 44

18. The question of at which point an assembly can no longer be regarded as a tempo-
rary presence (thus exceeding the degree of tolerance presumptively to be afforded
by the authorities towards all peaceful assemblies) must be assessed according to the
individual circumstances of each case.45 Nonetheless, the touchstone established by
the European Court of Human Rights is that demonstrators ought to be given suf-
ficient opportunity to manifest their views.46 Where an assembly causes little or no
inconvenience to others, then the authorities should adopt a commensurately less
stringent test of temporariness (see, further, paras. 39-45 in relation to proportion-
ality). The extracts below also serve to highlight that the term temporary should
not preclude the erection of protest camps or other non-permanent constructions.

Article 1, Decree of the President in force of Law On the procedure of or-

ganization and conduct of peaceful assemblies, mass meetings, processions,
pickets and demonstrations in the Republic of Kazakhstan (1995)
the forms of expression of public, group and personal interests
and protest referred to as assemblies, meetings, processions and
demonstrations shall also include hunger strikes in public places and
putting up yurts, tents and other constructions, and picketing.

Section 11, Assembly Act, Finland (1999, as amended 2001)

In a public meeting, banners, insignia, loudspeakers and other regular
meeting equipment may be used and temporary constructions erected.
In this event, the arranger shall see to it that no danger or
 31

unreasonable inconvenience or damage is thereby caused to the

participants, bystanders or the environment.

19. These Guidelines apply to assemblies held in public places that everyone has an
equal right to use (including, but not limited to, public parks, squares, streets,
roads, avenues, sidewalks, pavements and footpaths).47 In particular, the state
should always seek to facilitate public assemblies at the organizers preferred lo-
cation, where this is a public place that is ordinarily accessible to the public (see
paras. 39-45, in relation to proportionality).

20. Participants in public assemblies have as much a claim to use such sites for a rea-
sonable period as anyone else. Indeed, public protest, and freedom of assembly
in general, should be regarded as equally legitimate uses of public space as the
more routine purposes for which public space is used (such as commercial activ-
ity or for pedestrian and vehicular traffic). 48 This principle has been clearly stated
by both the European Court of Human Rights and the Inter-American Commission
on Human Rights Special Rapporteur for Freedom of Expression:

Balcik v. Turkey (2007), paragraph 52,

and Ashughyan v. Armenia (2008), paragraph 90:
Any demonstration in a public place may cause a certain level of
disruption to ordinary life, including disruption of traffic and, where
demonstrators do not engage in acts of violence, it is important for
the public authorities to show a certain degree of tolerance towards
peaceful gatherings if the freedom of assembly guaranteed by Article 11
of the ECHR is not to be deprived of all substance.

Inter-American Commission on Human Rights:

Report of the Office of the Special Rapporteur for Freedom of Expression
(2008), paragraph 70:
Naturally, strikes, road blockages, the occupation of public space, and
even the disturbances that might occur during social protests can cause
annoyances or even harm that it is necessary to prevent and repair.
Nevertheless, disproportionate restrictions to protest, in particular in
cases of groups that have no other way to express themselves publicly,
seriously jeopardize the right to freedom of expression. The Office of the
Special Rapporteur is therefore concerned about the existence
32

of criminal provisions that make criminal offenses out of the mere

participation in a protest, road blockages (at any time and of any kind)
or acts of disorder that in reality, in and of themselves, do not adversely
affect legally protected interests such as the life or liberty of individuals.

21. Other facilities ordinarily accessible to the public that are buildings and structures
such as publicly owned auditoriums, stadiums or buildings should also be re-
garded as legitimate sites for public assemblies, and will similarly be protected by
the rights to freedom of assembly and expression. 49

22. The right to freedom of peaceful assembly has also been held to cover assemblies
on private property.50 However, the use of private property for assemblies raises
issues that are different from the use of public property. For example, prior noti-
fication (other than booking the venue or seeking the permission of the owner of
the premises) is not required for meetings on private property. 51

23. In general, property owners may legitimately restrict access to their property to
whomsoever they choose.52 Nonetheless, there has been a discernable trend to-
wards the privatization of public spaces in a number of jurisdictions, and this has
potentially serious implications for assembly, expression and dissent. 53 The state
may, on occasion, have a positive obligation to ensure access to privately owned
places for the purposes of assembly or expression. In the case of Appleby and Oth-
ers v. the United Kingdom (2003), a case concerning freedom of expression in a
privately owned shopping centre, the European Court of Human Rights stated
that the effective exercise of freedom of expression may require positive meas-
ures of protection, even in the sphere of relations between individuals.54 Freedom
of assembly in privately owned spaces may be deserving of protection where the
essence of the right has been breached.

Extract from Appleby and Others v. the United Kingdom (2003),

paragraph 47:
Where the bar on access to property has the effect of preventing
any effective exercise of freedom of expression or it can be said that
the essence of the right has been destroyed, the Court would not
exclude that a positive obligation could arise for the State to protect the
enjoyment of Convention rights by regulating property rights.
 33

The corporate town, where the entire municipality was controlled by a

private body, might be an example.

24. Planning regulations and architectural design can also serve to constrict the
availability of public places or make them entirely inaccessible for the purposes
of freedom of assembly. For example, physical security installations that serve
to prevent speakers from coming within close proximity of particular locations
(particularly those of symbolic importance) may sometimes constitute an indi-
rect but disproportionate blanket restriction on freedom of assembly, much like
direct prohibitions on assemblies at designated locations (see paras. 43, 89 and
102). 55 Similarly, urban landscaping (including the erection of fences and foun-
tains, the narrowing of sidewalks, streets and roads, or the planting of trees
and shrubs) can potentially restrict the use of public space for assemblies. Ur-
ban-planning procedures should, therefore, allow for early and widespread
consultation. Urban-planning laws might also usefully require that specific
consideration be given to the potential impact of new designs on freedom of
assembly.

Peaceful and non-peaceful assemblies

25. Peaceful assemblies: Only peaceful assembly is protected by the right to freedom
of assembly. The European Court of Human Rights has stated that [i]n practice,
the only type of events that did not qualify as peaceful assemblies were those in
which the organizers and participants intended to use violence.56 Participants must
also refrain from using violence (though the use of violence by a small number of
participants should not automatically lead to the categorization as non-peaceful of
an otherwise peaceful assembly see para. 164). An assembly should, therefore,
be deemed peaceful if its organizers have professed peaceful intentions, and this
should be presumed unless there is compelling and demonstrable evidence that
those organizing or participating in that particular event themselves intend to use,
advocate or incite imminent violence. 57

26. The term peaceful should be interpreted to include conduct that may annoy or
give offence to persons opposed to the ideas or claims that it is seeking to pro-
mote,58 and even include conduct that temporarily hinders, impedes or obstructs
the activities of third parties.59 Thus, by way of example, assemblies involving pure-
ly passive resistance should be characterized as peaceful.60 Furthermore, in the
course of an assembly, an individual does not cease to enjoy the right to peace-
ful assembly as a result of sporadic violence or other punishable acts committed
34

by others in the course of the demonstration, if the individual in question remains

peaceful in his or her own intentions or behaviour.61

27. The spectrum of conduct that constitutes violence should be narrowly construed
but may exceptionally extend beyond purely physical violence to include inhuman
or degrading treatment 62 or the intentional intimidation or harassment of a cap-
tive audience.63 In such instances, the destruction of rights provisions may also be
engaged (see para. 15).

28. If this fundamental criterion of peacefulness is met, it triggers the positive obli-
gations entailed by the right to freedom of peaceful assembly on the part of the
state authorities (see paras. 31-34,104 and 144-145). It should be noted that assem-
blies that survive this initial test (and are thus, prima facie, deserving of protection)
may still legitimately be restricted on public-order or other legitimate grounds (see
chapter4).
 35

3. Guiding Principles
29. Respect for the general principles discussed below must inform all aspects of the
drafting, interpretation and application of legislation relating to freedom of as-
sembly. Those tasked with interpreting and applying the law must have a clear
understanding of these principles. To this end, three principles the presumption
in favour of holding assemblies, the states duty to protect peaceful assembly, and
proportionality should be clearly articulated in legislation governing freedom of
assembly.

The presumption in favour of holding assemblies

30. As a basic and fundamental right, freedom of assembly should be enjoyed without
regulation insofar as is possible. Anything not expressly forbidden in law should,
therefore, be presumed to be permissible, and those wishing to assemble should
not be required to obtain permission to do so. A presumption in favour of the free-
dom should be clearly and explicitly established in law. In many jurisdictions this is
achieved by way of a constitutional guarantee, but it can also be stated in legisla-
tion specifically governing the regulation of assemblies (see the extracts from the
Law in Armenia and the Constitution of Romania, below). Such provisions should
not be interpreted restrictively by the courts or other authorities.64 Furthermore,
it is the responsibility of the state to put in place adequate mechanisms and pro-
cedures to ensure that the enjoyment of the freedom is practical and not unduly
bureaucratic. The relevant authorities should assist individuals and groups who
wish to assemble peacefully. In particular, the state should always seek to facilitate
and protect public assemblies at the organizers preferred location, and should
also ensure that efforts to disseminate information to publicize forthcoming as-
semblies are not impeded in any way.
36

Law on Conducting Meetings, Assemblies, Rallies and Demonstrations,

Republic of Armenia (2008)
1. The objective of this law is to create the necessary conditions for
citizens of the Republic of Armenia, foreign citizens, stateless persons
(hereafter referred to as citizens) and legal persons to exercise their
right to conduct peaceful and weaponless meetings, assemblies, rallies
and demonstrations as set forth in the Constitution and international
treaties. The exercise of this right is not subject to any restriction, except
in cases prescribed by law and that are necessary in a democratic
society in the interests of national security or public security, for the
prevention of disorder and crime, for the protection of health and
morals, or for the protection of the rights and freedoms of others. This
article does not prevent the imposition of lawful restrictions on the
exercise of these rights by police and state bodies.

Article 39, Constitution of Romania 1991 (as amended, 2003)

Public meetings, processions, demonstrations or any other assembly
shall be free and may be organized and held only peacefully, without
arms of any kind whatsoever.

The states duty to protect peaceful assembly

31. The state has a positive duty to actively protect peaceful assemblies (see The li-
ability and accountability of law-enforcement personnel),65 and this should be
expressly stated in any relevant domestic legislation pertaining to freedom of as-
sembly and police and military powers. This positive obligation requires the state
to protect the participants of a peaceful assembly from any persons or groups (in-
cluding agents provocateurs and counter-demonstrators) that attempt to disrupt
or inhibit them in any way.

32. The importance of freedom of assembly for democracy was emphasized in para-
graph 2. In this light, the costs of providing adequate security and safety measures
(including traffic and crowd management, and first-aid services)66 should be fully
covered by the public authorities.67 The state must not levy any additional financial
charge for providing adequate and appropriate policing.68 Furthermore, organiz-
ers of public assemblies should not be required to obtain public-liability insurance
for their events. Similarly, the responsibility to clean up after a public assembly
should lie with the municipal authorities.69 To require assembly organizers to pay
such costs would create a significant deterrent for those wishing to enjoy their right
 37

to freedom of assembly and might actually be prohibitive for many organizers. As

such, imposing onerous financial requirements on assembly organizers is likely to
constitute a disproportionate prior restraint.

Article 10, Law on Public Assemblies, Republic of Moldova (2008)

(4).Public authorities will undertake actions necessary to ensure the
provision of the services solicited by the organizers and the services
that are normally provided by subordinated bodies and by publicly
administered enterprises.

Article 20, Law on Public Assemblies, Republic of Moldova (2008)

(3).Local public authorities cannot charge the organizers for services
provided that are services normally provided by subordinated bodies
and by publicly administered enterprises.

Article 18, Law of the Russian Federation on Rallies, Meetings, Demonstra-

tions, Marches and Picketing (2004)
[T]he maintenance of public order, regulation of road traffic, sanitary
and medical service with the objective of ensuring the holding of the
public event shall be carried out on a free basis [by the authorities].

33. The states duty to protect peaceful assembly is of particular significance where
the persons holding or attempting to hold an assembly are espousing a view that
is unpopular, as this may increase the likelihood of hostile opposition. Howev-
er, potential disorder arising from hostility directed against those participating
in a peaceful assembly must not be used to justify the imposition of restrictions
on peaceful assembly. In addition, the states positive duty to protect peaceful as-
semblies also extends to simultaneous opposition assemblies (often known as
counter-demonstrations).70 The state should, therefore, make available adequate
policing resources to facilitate demonstrations and related simultaneous assem-
blies within sight and sound of one another (see paras. 122-124). The principle of
non-discrimination requires, further, that assemblies in comparable circumstanc-
es do not face differential levels of restriction.

34. The duty to protect peaceful assembly also requires that law-enforcement offi-
cials be appropriately trained to deal with public assemblies and that the culture
and ethos of the law-enforcement agencies adequately prioritizes the protec-
tion of human rights (see paras. 147-148 and 178).71 This not only means that they
should be skilled in techniques of crowd management to minimize the risk of
38

harm to all concerned but, also, that they should be fully aware of and under-
stand their responsibility to facilitate as far as possible the holding of peaceful
assemblies.

Legality

35. Any restrictions imposed must have a formal basis in primary law, as must the man-
date and powers of the restricting authority.72 The law itself must be sufficiently
precise to enable an individual to assess whether or not his or her conduct would
be in breach of the law, and also to foresee the likely consequences of any such
breach.73 The incorporation of clear definitions in domestic legislation is vital to en-
suring that the law remains easy to understand and apply, and that regulation does
not encroach upon activities that ought not to be regulated. Definitions, therefore,
should neither be too elaborate nor too broad.

36. While this foreseeability requirement does not mean that a single consolidated
law on freedom of assembly need be enacted, it does at least require consistency
among the various laws that might be invoked to regulate freedom of assembly. Any
law that regulates freedom of peaceful assembly should not duplicate provisions
already contained in other legislation, as this would reduce the overall consisten-
cy and transparency of the legislative framework.

37. The more specific the legislation, the more precise the language used ought to be.
Constitutional provisions, for example, will be less precise than primary legislation
because of their general nature.74 In contrast, legislative provisions that confer dis-
cretionary powers on the regulatory authorities should be narrowly framed and
should contain an exhaustive list of the grounds for restricting assemblies (see
para. 69). Clear guidelines or criteria should also be established to govern the ex-
ercise of such powers and limit the potential for arbitrary interpretation.75

38. To aid certainty, any prior restrictions should be formalized in writing and commu-
nicated to the organizer of the event within a reasonable time-frame (see, further,
para. 135). Furthermore, the relevant authorities must ensure that any restrictions
imposed during an event are in full conformity with the law and consistent with es-
tablished jurisprudence. Finally, the imposition after an assembly of sanctions and
penalties that are not prescribed by law is not permitted.

Proportionality

39. Any restrictions imposed on freedom of assembly must pass the proportionality
test.76 The principle of proportionality is a vehicle for conducting a balancing ex-
 39

ercise. It does not directly balance the right against the reason for interfering with
it. Instead, it balances the nature and extent of the interference against the reason
for interfering.77 The extent of the interference should cover only the purpose that
justifies it.78 Moreover, given that a wide range of interventions might be suitable,
the least intrusive means of achieving the legitimate purpose should always be giv-
en preference.79

40. The regulatory authority must recognize that it has authority to impose a range
of restrictions, rather than viewing the choice as simply between non-interven-
tion or prohibition (see, further, Time, Place and Manner Restrictions, in paras.
99-100). Any restrictions should closely relate to the particular concerns raised
and should be narrowly tailored to meet the specific aim(s) pursued by the au-
thorities. The state must show that any restrictions promote a substantial interest
that would not be achieved absent the restriction. The principle of proportional-
ity thus requires that authorities do not routinely impose restrictions that would
fundamentally alter the character of an event (such as relocating assemblies to
less central areas of a city). 80

Extract from Article 7(I)-(II), Law of the Republic of Azerbaijan on Free-

dom of Assembly (1998)
I. No restrictions shall be placed on the exercise of the right to freedom
of assembly other than such as are prescribed by law and are necessary
in a democratic society in the interests of national security or public
safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of
others.
II. Restriction of the freedom of assembly provided for in part I of the
present Article must be proportionate to pursued goals. To reach the
goal such a restriction must not exceed necessary and sufficient limits.

41. The principle of proportionality requires that there be an objective and detailed
evaluation of the circumstances affecting the holding of an assembly. Furthermore,
where other rights potentially conflict with the right to freedom of peaceful assem-
bly, decisions by the regulatory authorities should be informed by a parallel analysis
of the respective rights at stake (bearing in mind that the limitations or qualifica-
tions permitted may not be identical for these other rights). In other words, there
should a full assessment of each of the rights engaged, examining the proportion-
ality of any interference potentially caused by the full protection of the right to
freedom of peaceful assembly.81
40

42. The European Court of Human Rights has further held that the reasons adduced
by national authorities to support any claim of proportionality must be relevant
and sufficient,82 convincing and compelling83 and based on an acceptable assess-
ment of the relevant facts84. 85 Mere suspicion or presumptions cannot suffice.86
This is particularly the case where the assembly concerns a matter of public inter-
est or where political speech is involved.

43. Consequently, the blanket application of legal restrictions for example, banning
all demonstrations during certain times, or in particular locations or public places
that are suitable for holding assemblies tends to be over-inclusive. Thus, they will
fail the proportionality test, because no consideration has been given to the spe-
cific circumstances in each case. 87 Legislative provisions that limit the holding of
assemblies to only certain specified sites or routes (whether in central or remote
locations) seriously undermine the communicative purpose of freedom of assem-
bly, and should be regarded as a prima facie violations of the right. Similarly, the
regulation of assemblies in residential areas or of assemblies at night time should
be handled on a case-by-case basis rather than being specified as prohibited cat-
egories of assemblies.

44. The time, place and manner of individual public assemblies can, however, be regu-
lated to prevent them from unreasonably interfering with the rights and freedoms
of other people (see chapter 4). This reflects the need for a proper balance to be
struck between the rights of persons to express their views by means of assembly
and the interest of not imposing unnecessary burdens on the rights of non-partic-
ipants.

45. If, having regard for the relevant factors, the authorities have a proper basis for
concluding that restrictions should be imposed on the time or place of an assem-
bly (rather than merely the manner in which the event is conducted), a suitable
alternative time or place should be made available.88 Any alternative must be such
that the message that the protest seeks to convey is still capable of being effective-
ly communicated to those to whom it is directed in other words, within sight and
sound of the target audience (see para. 33 and Simultaneous Assemblies in par-
as. 122-124).89
 41

Article 13(4)-13(5), Law of the Republic of Armenia on Conducting

Meetings, Assemblies, Rallies and Demonstrations (2008)
4. Should the authorized body find during the consideration of
notification that there are grounds to prohibit the conduct of a mass
public event pursuant to paragraph 2 or the last paragraph of part 1 of
this Article, the authorized body shall offer the organizer other dates (in
the place and at the time specified in the notification) or other hours (in
the place and on the date specified in the notification) for conducting a
mass public event or other conditions concerning the form of the event.

Any date proposed by the authorized body shall be no more than two
days after the date proposed by the organizer.

Any time proposed by the authorized body shall be the same as

proposed by the organizer, or within three hours difference.

5. Should the authorized body find, during consideration of the

notification, that there are sufficient grounds to prohibit the conducting
of a mass public event the authorized body shall offer the organizer
another place for conducting the mass public event (on the date and
time specified in the notification).

Any place proposed by the authorized body shall meet the reasonable
requirements of the organizer, specifically with regard to the possibility
of participation of the estimated number of participants (provided
the notification contains such information). Proposed places should
not include areas outside the selected community and, in the case of
Yerevan, areas outside selected districts. The proposed place shall be as
close as possible to the place specified in the notification.

Non-discrimination

46. Freedom of peaceful assembly is to be enjoyed equally by all persons. The prin-
ciple that human rights shall be applied without discrimination lies at the core of
the interpretation of human rights standards. Article 26 of the ICCPR and Article
14 of the ECHR require that each state secure the enjoyment of the human rights
recognized in these treaties for all individuals within its jurisdiction without dis-
crimination.90
42

47. Article 14 of the ECHR does not provide a freestanding right to non-discrimination
but complements the other substantive provisions of the Convention and its Pro-
tocols. Thus, Article 14 is applicable only where the facts at issue (or arguably, the
grounds of restriction) fall within the ambit of one or more of the other Convention
rights.91 OSCE participating States and parties to the ECHR are encouraged to rati-
fy Protocol 12 (see below), which contains a general prohibition of discrimination.92
Additionally, Article 5 of the Convention on the Elimination of all forms of Racial Dis-
crimination requires States Parties to prohibit and eliminate racial discrimination.

Article 26 ICCPR
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal
and effective protection against discrimination on any ground, such as
race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.

Article 5, Convention on the Elimination of all forms of Racial

Discrimination
In compliance with the fundamental obligations laid down in article
2 of this Convention, States Parties undertake to prohibit and to
eliminate racial discrimination in all its forms and to guarantee the
right of everyone, without distinction as to race, colour, or national or
ethnic origin, to equality before the law, notably in the enjoyment of the
following rights:
(d) Other civil rights, in particular;
(ix) The right to freedom of peaceful assembly and association;

Article 14 ECHR
The enjoyment of the rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.

Protocol 12 ECHR, Article 1 General prohibition of discrimination

1. The enjoyment of any right set forth by law shall be secured without
discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.
 43

2. No one shall be discriminated against by any public authority on any

ground such as those mentioned in paragraph 1.

Article 21, Charter of Fundamental Rights of the European Union:

Any discrimination based on any ground such as sex, race, colour,
ethnic or social origin, genetic features, language, religion or belief,
political or any other opinion, membership of a national minority,
property, birth, disability, age or sexual orientation shall be prohibited.

48. Any discrimination based on grounds such as sex, race, colour, ethnic or social
origin, genetic features, language, religion or belief, political or any other opinion,
membership of a national minority, property, birth, disability, age or sexual ori-
entation shall be prohibited. Moreover, the failure of the state to prevent or take
steps in response to acts of discrimination committed by private individuals may
also constitute a breach of the right to freedom from discrimination.93

49. Importantly, Article 26 of the ICCPR has been interpreted to include sexual ori-
entation in the reference to non-discrimination on grounds of sex.94 Article 13 of
the Amsterdam Treaty also provides for the European Union to undertake nec-
essary actions to fight discrimination based on sexual orientation, and Article
21(2) of the EU Charter of Fundamental Rights prohibits any discrimination on
any ground, including on the basis of sexual orientation.95 Both Principle 20 of
the Yogyakarta Principles96 and the Committee of Ministers Recommendation on
measures to combat discrimination on grounds of sexual orientation97 are also di-
rectly relevant in this regard.

50. The regulatory authority must not impose more onerous preconditions on some
persons wishing to assemble than on others whose cases are similar.98 The reg-
ulatory authority may, however, treat differently persons whose situations are
significantly different.99 Article 26 of the ICCPR guarantees all persons equali-
ty before the law and equal protection of the law. This implies that decisions by
the authorities concerning freedom of assembly must not have a discriminatory
impact, and so both direct and indirect discrimination are prohibited.100 Further-
more, the law-enforcement authorities have an obligation to investigate whether
discrimination is a contributory factor to any criminal conduct that occurs during
an assembly (such as participants being physically attacked).101

51. Attempts to prohibit and permanently exclude assemblies organized by members

of one ethnic, national or religious group from areas predominantly occupied by
44

members of another group may be deemed to promote segregation, and would

be contrary to the UN Convention on the Elimination of All Forms of Racial Dis-
crimination, Article 3 of which affirms that [p]arties particularly condemn racial
segregation and apartheid and undertake to prevent, prohibit and eradicate all
practices of this nature in territories under their jurisdiction.

52. This following section highlights some of the key human rights provisions that
protect the freedom of peaceful assembly by particular sections of society whose
freedoms are sometimes not adequately protected.

53. Groups, unregistered associations and legal entities: Freedom of peaceful assem-
bly can be exercised by both individuals and corporate bodies (as, for example,
provided in the extract from the Bulgarian Law on Gatherings, Meetings and
Manifestations, below).102 In order to ensure that freedom of peaceful assembly is
protected in practice, states should remove the requirement of mandatory registra-
tion of any public organization and guarantee the right of citizens to set up formal
and informal associations. (See Freedom of Association and Freedom of Assem-
bly, in paras. 105-106).

Article 2, Bulgarian Law on Gatherings, Meetings and Manifestations (1990)

Gatherings, meetings and manifestations can be organized and held by
[individuals], associations, political and other social organizations.

54. Minorities: The freedom to organize and participate in public assemblies should be
guaranteed to members of minority and indigenous groups. Article 7 of the Coun-
cil of Europe Framework Convention on National Minorities (1995) provides that
[t]he Parties shall ensure respect for the right of every person belonging to a na-
tional minority to freedom of peaceful assembly, freedom of association, freedom
of expression, and freedom of thought, conscience and religion.103 Article 3(1), UN
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities (1992) also states that [p]ersons belonging to minorities may
exercise their rights... individually as well as in community with other members of
their group, without any discrimination.104 As noted in paragraph 7, democracy
does not simply mean that the views of the majority must always prevail: a balance
must be achieved which ensures the fair and proper treatment of minorities and
avoids any abuse of a dominant position.105

55. Non-nationals (stateless persons, refugees, foreign nationals, asylum seekers,

migrants and tourists): International human rights law requires that non-nationals
 45

receive the benefit of the right of peaceful assembly.106 It is important, therefore,

that the law extends freedom of peaceful assembly not only to citizens, but that
it also includes stateless persons, refugees, foreign nationals, asylum seekers, mi-
grants and tourists. Note, however, that Article 16 of the ECHR provides that [n]
othing in Articles 10, 11, and 14 shall be regarded as preventing the High Contracting
Parties from imposing restrictions on the political activity of aliens. The application
of Article 16 should be confined to speech activities by non-nationals that directly
burden national security. There is no reason to stop non-nationals from partici-
pating in an assembly that, for example, challenges domestic immigration laws or
policies. The increase in transnational protest movements also underscores the im-
portance of facilitating freedom of assembly for non-nationals.107

56. Women: Under Article 3 of the UN Convention on the Elimination of all forms of
Discrimination Against Women (CEDAW), States Parties are obliged to take all ap-
propriate measures to ensure the full development and advancement of women
for the purpose of guaranteeing them the exercise and enjoyment of human rights
and fundamental freedoms on a basis of equality with men.108

57. Children: Like adults, children have legitimate claims and interests. Freedom of
peaceful assembly provides them with a means of expressing their views and con-
tributing to society. Article 15 of the UN Convention on the Rights of the Child
requires States Parties to recognize the right of children to organize and partici-
pate in peaceful assemblies.109

Article 15, UN Convention on the Rights of the Child

1. States Parties recognize the rights of the child to freedom of
association and to freedom of peaceful assembly.
2. No restrictions may be placed on the exercise of these rights other
than those imposed in conformity with the law and which are necessary
in a democratic society in the interests of national security or public
safety, public order (ordre public), the protection of public health or
morals or the protection of the rights and freedoms of others.

58. In light of the important responsibilities of the organizers of public assemblies (see
paras. 185-198), the law may set a certain minimum age for organizers, having due
regard to the evolving capacity of the child (see the examples from the Finland As-
sembly Act and the Law on Public Assemblies of the Republic of Moldova, below).
The law may also provide that minors may organize a public event only if their par-
ents or legal guardians consent to their doing so.
46

Section 5, Finlands Assembly Act (1999): Right to arrange public

meetings
A person who is without full legal capacity but who has attained 15
years of age may arrange a public meeting, unless it is evident that
he/she will not be capable of fulfilling the requirements that the law
imposes on the arranger of a meeting. Other persons without full legal
capacity may arrange public meetings together with persons with full
legal capacity.

Law on Public Assemblies of the Republic of Moldova (2008)

Article 6, Organizers of assemblies
(2) Minors of age 14 and persons declared to have limited legal capacity
can organize public assemblies together with persons with full legal
capacity.
Article 7, Participants in assemblies
(1) Everyone is free to actively participate and assist at the assembly.
(2) Nobody can be obliged to participate or assist at an assembly
against his/her will.

59. Persons with disabilities: The UN Convention on the Rights of Persons with Disa-
bilities similarly emphasizes the need to promote, protect and ensure the full and
equal enjoyment of all human rights and fundamental freedoms by all persons
with disabilities...110 The international standards provide that [e]very person with
a mental illness shall have the right to exercise all civil, political, economic, social
and cultural rights as recognized in the International Covenant on Civil and Po-
litical Rights, and in other relevant instruments.111 All individuals should thus be
facilitated in the enjoyment of their freedom to peacefully assemble, irrespective
of their legal capacity.

60. Law-enforcement personnel and state officials: The ECHR permits lawful re-
strictions on the exercise of these rights by members of the armed forces, of the
police, or of the administration of the State.112 Any such restrictions must be de-
signed to ensure that the responsibilities of those in the services concerned are
properly discharged and that any need for the public to have confidence in their
neutrality is maintained.113 The definition of neutrality is central. Neutrality should
not be interpreted so as to unnecessarily restrict the freedom to hold and express
an opinion. Legislation should not, therefore, restrict the freedom of assembly of
law-enforcement personnel (including the police and the military) or state officials
unless the reasons for restriction are directly connected with their service duties,
 47

and then only to the extent absolutely necessary in light of considerations of pro-
fessional duty.

Good administration and transparent decision-making

61. The public should be informed which body is responsible for taking decisions about
the regulation of freedom of assembly, and this should be clearly stated in law.114 It
is important to have a properly mandated decision-making authority, as those of-
ficials who have to bear the risk of taking controversial decisions about assemblies
often come under intense public pressure (potentially leading to decisions that do
not adhere to or reflect the human rights principles set out in these Guidelines).
In some jurisdictions, it may be appropriate for decisions about regulating assem-
blies to be taken by a different body from the authority tasked with enforcing the
law. This separation of powers can assist those enforcing the law, by rendering
them less amenable to pressure to change an unfavourable decision. In jurisdic-
tions where there are diverse ethnic and cultural populations and traditions, it
might be helpful if the regulatory authority is broadly representative of those dif-
ferent backgrounds.115

62. The officials responsible for making decisions concerning the regulation of the right
to freedom of assembly should be fully aware of and understand their responsibili-
ties in relation to the human rights issues bearing upon their decisions. To this end,
such officials should receive periodic training in relation to the implications of ex-
isting and emerging human rights case law. The regulatory authority must also be
adequately staffed and resourced, so as to enable it to effectively fulfil its obliga-
tions in a way that enhances co-operation between the organizer and authorities.

63. The regulatory authority should ensure that the general public has adequate access
to reliable information relating to public assemblies,116 as well as about its proce-
dures and operation. Many countries already have legislation specifically relating
to access to information, open decision-making and good administration, and these
laws should be applicable to the regulation of freedom of assembly.

64. Procedural transparency should ensure that freedom of peaceful assembly is not
restricted on the basis of imagined risks or even real risks which, if opportunities
were given, could be adequately addressed prior to the assembly. In this regard,
the authorities should ensure that its decisions are as well-informed as possible.
Domestic legislation could, for example, require that a representative of the deci-
sion-making authority attend any public assembly in relation to which substantive
human rights concerns have been raised (irrespective of whether or not any re-
strictions were actually imposed). Organizers of public assemblies and those whose
48

rights and freedoms will be directly affected by an assembly should also have an
opportunity to make oral and written representations directly to the regulatory au-
thority (see Decision-making and review processes in paras. 132-140). It is of note
that Article 41 of the Charter of Fundamental Rights of the European Union pro-
vides that everyone has the right to good administration.

Article 41, Charter of Fundamental Rights of the European Union

1. Every person has the right to have his or her affairs handled
impartially, fairly and within a reasonable time by the institutions
and bodies of the Union.
2. This right includes:
the right of every person to be heard, before any individual
measure which would affect him or her adversely is taken;
the right of every person to have access to his or her file, while
respecting the legitimate interests of confidentiality and of
professional and business secrecy;
the obligation of the administration to give reasons for its decisions.

65. Laws relating to freedom of assembly should outline a clear procedure for interac-
tion between event organizers and the regulatory authorities. This should set out
appropriate time limits, working backwards from the date of the proposed event,
and should allow adequate time for each stage in the regulatory process

66. Review and appeal: An initial option of administrative review (see para. 137) can
both reduce the burden on courts and help build a more constructive relation-
ship between the authorities and the public. However, where such a review fails
to satisfy the applicant, there should be an opportunity to appeal the decision of
the regulatory authority to an independent court. Appeals should take place in a
prompt and timely manner so that any revisions to the authorities decision can
be implemented without further detriment to the applicants rights. A final ruling
should, therefore, be given prior to the date of the assembly in the notification. In
the absence of the possibility of a final ruling, the law should provide for the possi-
bility of interim relief by injunction. This requirement is examined further in Chapter
5 Procedural Issues (Decision-making and review processes, paras. 132-140) and
in Annex A, Enforcement of international human rights standards.

67. The liability of the regulatory authority: The regulatory authorities must comply
with their legal obligations and should be accountable for any failure procedur-
al or substantive to do so whether before, during or after an assembly. Liability
 49

should be gauged according to the relevant principles of administrative or crimi-

nal law or judicial review concerning the misuse of public power.

Article 183, Moldovas Penal Code (2002)

Violation of the right to freedom of assembly
Violation of the right to public assembly by illegal actions to impede
an assembly or by constraining participation is liable to a fine or
imprisonment for up to 2 years.

Article 67, Moldovas Contraventions Code (2008)

Violation of the right to freedom of assembly
Impeding the organization and carrying out of assemblies, as well as
putting obstacles in the way of or constraining participation in the
assembly, will be sanctioned by a fine.
50

4. Restrictions on Freedom of Assembly

68. While international and regional human rights instruments affirm and protect the right
to freedom of peaceful assembly, they also allow states to impose certain limitations
on that freedom. This chapter examines the legitimate grounds for the imposition of
restrictions on public assemblies and the types of limitation which can be imposed.

Legitimate grounds for restriction

69. The legitimate grounds for such restrictions are prescribed by the relevant in-
ternational and regional human rights instruments, and these should neither be
supplemented by additional grounds in domestic legislation 117 nor loosely interpret-
ed by the authorities.118

70. The regulatory authorities must not raise obstacles to freedom of assembly unless
there are compelling arguments to do so. Applying the guidance below should help
the regulatory authorities test the validity of such arguments. The legitimate aims
discussed in this section (as provided in the limiting clauses in Article 21 of the IC-
CPR and Article 11 of the ECHR) are not a licence to impose restrictions, and the
onus rests squarely on the authorities to substantiate any justifications for the im-
position of restrictions.

71. Public order: The inherent imprecision of this term 119 must not be exploited to jus-
tify the prohibition or dispersal of peaceful assemblies. Neither a hypothetical risk
of public disorder nor the presence of a hostile audience are legitimate grounds
for prohibiting a peaceful assembly.120 Prior restrictions imposed on the basis of the
possibility of minor incidents of violence are likely to be disproportionate, and any
isolated outbreak of violence should be dealt with by way of subsequent arrest and
prosecution rather than prior restraint.121 The European Court of Human Rights
has noted that an individual does not cease to enjoy the right to peaceful assem-
bly as a result of sporadic violence or other punishable acts committed by others
in the course of the demonstration, if the individual in question remains peaceful
in his or her own intentions or behaviour.122

72. An assembly that the organizers intend to be peaceful may still legitimately be re-
stricted on public-order grounds in certain circumstances. Such restrictions should
only be imposed when there is evidence that participants will themselves use or in-
cite imminent, lawless and disorderly action and that such action is likely to occur.
This approach is designed to extend protection to controversial speech and polit-
ical criticism, even where this might engender a hostile reaction from others (see,
further, content-based restrictions in paras. 94-98).123
 51

73. Compelling and demonstrable evidence is required demonstrating that those or-
ganizing or participating in the particular event will themselves use violence. In the
event that there is evidence of potential violence, the organizer must be given a full
and fair opportunity for rebuttal by submitting evidence that the assembly will be
peaceful.

74. Public safety: There is a significant overlap between public-safety considerations

and those concerning the maintenance of public order. Particular public-safety con-
cerns might arise, for example, when assemblies are held outside daylight hours,
or when moving vehicular floats form part of an assembly. In such instances, ex-
tra precautionary measures should generally be preferred to restriction.

75. The state has a duty to protect public safety, and under no circumstances should
this duty be assigned or delegated to the organizer of an assembly. However, the
organizer and stewards may assist in ensuring the safety of members of the public.
An assembly organizer could counter any claims that public safety might be com-
promised by his or her event by, for example, ensuring adequate stewarding (see
paras. 191-196).

76. The protection of health: In the rare instances in which a threat to persons health
might be an appropriate basis for restricting of one or more public assemblies,
those restrictions should not be imposed unless other similar concentrations of in-
dividuals are also restricted. Thus, before a restriction may be justified based on
the need to protect public health, similar restrictions should also have been ap-
plied to attendance at school, concerts, sports events and other such activities at
which people ordinarily gather.

77. Restrictions might also be justified on occasions where the health of participants in
an assembly becomes seriously compromised. In the case of Cisse v. France (2002),
for example, the intervention of the authorities was justified on health grounds,
given that the protesters had reached a critical stage during a hunger strike, and
were confined in unsanitary conditions. Again, however, such reasoning should
not be relied upon by the authorities to pre-emptively break up peaceful assem-
blies, even where a hunger strike forms part of the protest strategy.

78. The protection of morals: The main human rights treaties that protect freedom
of assembly (the ICCPR and ECHR) are living instruments and are thus attuned
to diverse and changing moral values. Measures purporting to safeguard public
morals must, therefore, be tested against an objective standard of whether they
meet a pressing social need and comply with the principle of proportionality.124 In-
deed, it is not sufficient for the behaviour in question merely to offend morality it
52

must be behaviour that is deemed criminal and has been defined in law as such
(see para. 35).125

79. Moreover, the protection of morals should not ordinarily be regarded as an ap-
propriate basis for imposing restrictions on freedom of assembly.126 Reliance on
such a category can too easily lead to the regulation of content and discriminatory
treatment. Restrictions will violate the right to freedom of peaceful assembly un-
less they are permissible under the standards governing the regulation of content
(see paras. 94-98) and non-discrimination (paras. 46-60).127

80. The protection of the rights and freedoms of others: The regulatory authority
has a duty to strike a proper balance between the important freedom to peace-
fully assemble and the competing rights of those who live, work, shop, trade and
carry on business in the locality affected by an assembly. That balance should en-
sure that other activities taking place in the same space may also proceed if they
themselves do not impose unreasonable burdens.128 Temporary disruption of ve-
hicular or pedestrian traffic is not, of itself, a reason to impose restrictions on an
assembly.129 Nor is opposition to an assembly sufficient, of itself, to justify prior lim-
itations. Given the need for tolerance in a democratic society, a high threshold will
need to be overcome before it can be established that a public assembly will un-
reasonably infringe upon the rights and freedoms of others.130 This is particularly
so given that freedom of assembly, by definition, constitutes only a temporary in-
terference with these other rights.

81. While business owners and local residents do not normally have a right to be con-
sulted in relation to the exercise of fundamental rights131 where their rights are
engaged, it is good practice for organizers and law-enforcement agencies to dis-
cuss with the affected parties how the various competing rights claims might best
be protected to the mutual satisfaction of all concerned (see para. 134, in relation
to negotiation and mediated dialogue).

82. Where the regulatory authority restricts an assembly for the purpose of protect-
ing the competing rights and freedoms of others, the body should state:
The nature of any valid rights claims made;
How, in the particular context, these rights might be infringed (outlining the
specific factors considered);
How, precisely, the authoritys decision mitigates against any such infringe-
ment (the necessity of the restrictions); and
Why less intrusive measures could not be used.
 53

83. Rights that might be claimed by non-participants affected by an assembly (al-

though these need not be rights enumerated in the ICCPR or ECHR)132 potentially
include: the right to privacy (protected by Article 17 of the ICCPR and Article 8 of
the ECHR)133 the right to peaceful enjoyment of ones possessions (protected by
Article 1 of Protocol 1 of the ECHR),134 the right to liberty and security of person
(Article 9 of the ICCPR and Article 5 of the ECHR),135 and the right to freedom of
movement (Article 12 of the ICCPR and Article 2 of Protocol 4 of the ECHR).136 It
may also be that restrictions on freedom of assembly could be justified to protect
the right of others to freedom of expression and to receive information (Article 19
of the ICCPR and Article 10 of the ECHR),137 or to manifest their religion or belief
(Article 18 of the ICCPR and Article 9 of the ECHR).138 Nonetheless, no restrictions
should be imposed on freedom of assembly on the grounds of protecting the rights
of others unless the requisite threshold has been satisfied in relation to these oth-
er rights. Indeed, anyone seeking to exercise the right to freedom of assembly in
a way that would destroy the rights of others already forfeits his or her right to as-
semble by virtue of the destruction of rights clause in Article 5 of the ICCPR and
Article 17 of the ECHR (see para. 15).

84. Assessing the impact of public events on the rights of others must take due consid-
eration of the frequency of similar assemblies before the same audience. While a
high threshold must again be met, the cumulative impact on a captive audience
of numerous assemblies (for example, in a purely residential location) might con-
stitute a form of harassment that could legitimately be restricted to protect the
rights of others. Repeated, albeit peaceful, demonstrations by particular groups
might also in certain circumstances be viewed as an abuse of a dominant position
(see paras. 7 and 54), legitimately restricted to protect the rights and freedoms of
others.139 The principle of proportionality requires that, in achieving this aim, the
least onerous restrictions possible should be used (see paras. 39-45).140

85. National security: The issue of national security is often given too wide an interpre-
tation in relation to freedom of assembly. The Siracusa Principles on the Limitation
and Derogation of Provisions in the International Covenant on Civil and Political
Rights limit reliance on national-security grounds to justify restrictions of freedom
of expression and assembly.
54

National Security, Part VI, Siracusa Principles on the Limitation and

Derogation of Provisions in the International Covenant on Civil and
Political Rights
29. National security may be invoked to justify measures limiting certain
rights only when they are taken to protect the existence of the nation or its
territorial integrity or political independence against force or threat of force.
30. National security cannot be invoked as a reason for imposing
limitations to prevent merely local or relatively isolated threats to law
and order.
31. National security cannot be used as a pretext for imposing vague
or arbitrary limitations and may only be invoked when there exist
adequate safeguards and effective remedies against abuse.
32. The systematic violation of human rights undermines true national
security and may jeopardize international peace and security. A State
responsible for such violation shall not invoke national security as a
justification for measures aimed at suppressing opposition to such
violation or at perpetrating repressive practices against its population.

86. Similarly, Principle 6 of the Johannesburg Principles on National Security, Freedom

of Expression and Access to Information establishes clear parameters for the impo-
sition of restrictions on freedom of expression in the interests of national security.141

Principle 6, Johannesburg Principles on National Security, Freedom of

Expression and Access to Information
Expression That May Threaten National Security
Subject to Principles 15 and 16, expression may be punished as a threat
to national security only if a government can demonstrate that:
(a) the expression is intended to incite imminent violence;
(b) it is likely to incite such violence; and
(c) there is a direct and immediate connection between the expression
and the likelihood or occurrence of such violence.

Legislation intended to counter terrorism and extremism

87. Efforts to tackle terrorism or extremism and to enhance security must never be in-
voked to justify arbitrary action that curtails the enjoyment of fundamental human
 55

rights and freedoms. The International Commission of Jurists 2004 Declaration on

Upholding Human Rights and the Rule of Law in Combating Terrorism (the Berlin
Declaration)142 emphasized that the odious nature of terrorist acts cannot serve as
a basis or pretext for states to disregard their international obligations, in particu-
lar in the protection of fundamental human rights. Similarly, both the Guidelines
of the Committee of Ministers of the Council of Europe on Protecting Freedom of
Expression and Information in Times of Crisis (2007)143 and the OSCE manual Coun-
tering Terrorism, Protecting Human Rights (2007)144 caution against the imposition
of undue restrictions on the exercise of freedom of expression and assembly dur-
ing crisis situations.

88. Principle 8 of the Berlin Declaration is of particular relevance:

Principle 8, Berlin Declaration of the International Commission of

Jurists on Upholding Human Rights and the Rule of Law in Combating
Terrorism
In the implementation of counter-terrorism measures, States must
respect and safeguard fundamental rights and freedoms, including
freedom of expression, religion, conscience or belief, association, and
assembly, and the peaceful pursuit of the right to self-determination,
as well as the right to privacy, which is of particular concern in the
sphere of intelligence gathering and dissemination. All restrictions on
fundamental rights must be necessary and proportionate.

89. Counter-terrorism measures pose a number of particular challenges to the right

to freedom of peaceful assembly. Commonly, emergency legislation is introduced
to increase police stop-and-search powers, and it may also extend the time pe-
riod allowed for administrative detention without charge. Other examples of
exceptional measures include the proscription of particular organizations and the
criminalization of expression of support for them, the creation of offences concern-
ing provocation to or advocacy of extremism and/or terrorism,145 the designation
of specific sites or locations as prohibited areas (see paras. 24 and 43), increased
penalties for participation in unlawful assemblies, and the imposition of border
controls to prevent entry to individuals deemed likely to demonstrate and cause
disturbances to public order. All of these have a detrimental impact on the right to
freedom of peaceful assembly, and all must be shown to be necessary and strictly
proportionate (see General Principles in chapter 2).146
56

90. Any such extraordinary pre-emptive measures should be transparent and based
on corroborated evidence,147 have time limits and be subject to independent or ju-
dicial review. Specifically, the unilateral suspension of the Schengen Agreement
to enable the re-imposition of border controls in anticipation of large-scale assem-
blies should not permit disproportionate or blanket restrictions on the freedom of
movement of those travelling to participate in or observe an assembly.148

91. Domestic legislation designed to counter terrorism or extremism should narrow-

ly define the terms terrorism and extremism so as not to include forms of civil
disobedience and protest, the pursuit of certain political, religious or ideological
ends, or attempts to exert influence on other sections of society, the government
or international opinion. Furthermore, any discretionary powers afforded to law-
enforcement officials should be narrowly framed and include adequate safeguards
to reduce the potential for arbitrariness.149

Derogations in times of war or other public emergency

92. Under Article 4 of the ICCPR and Article 15 of the ECHR, in times of war or public
emergency threatening the life of the nation, states may take measures derogat-
ing from their obligation to guarantee freedom of assembly. They may do so only
to the extent strictly required by the exigencies of the situation and provided that
such measures are not inconsistent with their other obligations under internation-
al law.150 The crisis or emergency must be one that affects the whole population
and constitutes a threat to the organized life of the community of which the State
is composed.151 The Siracusa Principles on the Limitation and Derogation of Provi-
sions in the International Covenant on Civil and Political Rights state, further, that
neither [i]nternal conflict and unrest that do not constitute a grave and imminent
threat to the life of the nation nor [e]conomic difficulties can justify derogations
under Article 4.152

93. A public emergency must be both proclaimed to the citizens in the state con-
cerned153 and notification provided to other States Parties to the ICCPR through the
intermediary of the UN Secretary-General (Article 4(3) of the ICCPR), the Secre-
tary General of the Council of Europe (Article 15(3) of the ECHR) and the Secretary
General of the OSCE (Paragraph 28.10 of the Moscow Meeting of the Conference
on the Human Dimension, 1991). Derogations should also have time limits.

Types of restriction

94. Content-based restrictions: Speech and other forms of expression will normally
enjoy protection under Article of the 19 ICCPR and Article 10 of the ECHR. In gen-
 eral, therefore, the regulation of public assemblies should not be based upon the
content of the message they seek to communicate. As the European Court of Hu-
man Rights has recently stated, it is unacceptable from the standpoint of Article
11 of the Convention that an interference with the right to freedom of assembly
could be justified simply on the basis of the authorities own view of the merits of
a particular protest.154 This principle is explicitly reflected in the extract from the
Netherlands Public Assemblies Act, cited below. Any restrictions on the visual or
audible content of any message displayed or voiced should therefore face height-
ened (sometimes referred to as strict or anxious) scrutiny, and only be imposed
if there is an imminent threat of violence. Moreover, criticism of government or
state officials should never, of itself, constitute a sufficient ground for imposing re-
strictions on freedom of assembly; the European Court of Human Rights has often
emphasized that the limits of permissible criticism are wider with regard to the
government than in relation to a private citizen.155

Section 5, the Netherlands Public Assemblies Act, (1988)

3. A condition, restriction or prohibition may not relate to the religion or
belief to be professed, or the thoughts or feelings to be expressed.

95. Whether behaviour constitutes the intentional incitement of violence is a ques-

tion that must inevitably be assessed based on the particular circumstances.156
Some difficulty arises where the message concerns unlawful activity, or where it
could be construed as inciting others to commit non-violent but unlawful acts. Ex-
pressing support for unlawful activity can, in many cases, be distinguished from
disorderly conduct and, therefore, should not face restriction on public-order
grounds. The touchstone must be, again, the existence of an imminent threat of
violence.157

96. While expression should normally still be protected, even if it is hostile or insult-
ing to other individuals, groups or particular sections of society, the law should
still prohibit the advocacy of national, racial or religious hatred that constitutes in-
citement to discrimination, hostility or violence.158 Specific instances of hate speech
may be so insulting to individuals or groups as not to enjoy the level of protec-
tion afforded by Article 10 of the European Convention on Human Rights to other
forms of expression. This is the case where hate speech is aimed at the destruc-
tion of the rights and freedoms laid down in the Convention or at their limitation
to a greater extent than provided therein.159 Even then, resort to such speech by
participants in an assembly does not, of itself, necessarily justify the dispersal of
all persons participating in the event, and law-enforcement officials should take
58

measures (such as arrest) only against the particular individuals involved (either
during or after the event).

97. Where the insignia, uniforms, emblems, music, flags, signs or banners to be dis-
played or played during an assembly conjure memories of a painful historical past,
this should not, of itself, be reason to interfere with the right to freedom of peaceful
assembly to protect the rights of others.160 On the other hand, where such sym-
bols are intrinsically and exclusively associated with acts of physical violence, the
assembly might legitimately be restricted to prevent the reoccurrence of such vi-
olence or to protect the rights of others.

98. The wearing of a mask for expressive purposes at a peaceful assembly should not
be prohibited, so long as the mask or costume is not worn for the purpose of pre-
venting the identification of a person whose conduct creates probable cause for
arrest and so long as the mask does not create a clear and present danger of im-
minent unlawful conduct.161

99. Time, place and manner restrictions: The types of restriction that might be
imposed on an assembly relate to its time, place, and manner. This phrase origi-
nates from jurisprudence in the United States, and captures the sense that a wide
spectrum of possible restrictions that do not interfere with the message communi-
cated is available to the regulatory authority (see Proportionality in paras. 39-45).
In other words, rather than the choice between non-intervention and prohibition,
the authorities have recourse to many mid-range limitations that might adequate-
ly serve the purpose(s) they seek to achieve (including the prevention of activity
that causes damage to property or harm to persons). These limitations can relate
to changes to the time or place of an event, or the manner in which the event is
conducted. An example of manner restrictions might relate to the use of sound-
amplification equipment or lighting and visual effects. In this case, regulation may
be appropriate because of the location or time of day for which the assembly is
proposed.

100. The regulatory authority must not impose restrictions simply to pre-empt possible
disorder or interference with the rights of others. The fact that restrictions can be
imposed during an event (and not only before it takes place) enables the authorities
to avoid imposing onerous prior restrictions and to ensure that restrictions corre-
spond with and reflect the situation as it develops. This, however, in no way implies
that the authorities can evade their obligations in relation to good administration
(see paras. 61-67) by simply regulating freedom of assembly by administrative fiat.
Furthermore, (as discussed in paras. 134 and 157) the use of negotiation and/or me-
 59

diation can help resolve disputes around assemblies by enabling law-enforcement

authorities and the event organizer to reach agreement on any necessary limitations.

101. Sight and sound: Given that there are often a limited number of ways to effec-
tively communicate a particular message, the scope of any restrictions must be
precisely defined. In situations where restrictions are imposed, these should strict-
ly adhere to the principle of proportionality and should always aim to facilitate the
assembly within sight and sound of its object or target audience (see paras. 33,
45 and 123).

102. Restrictions imposed prior to an assembly (prior restraints): These are restric-
tions on freedom of assembly either enshrined in legislation or imposed by the
regulatory authority prior to the date of the event provided in the notification. Such
restrictions should be concisely drafted so as to provide clarity for both those who
have to follow them (assembly organizers and participants) and those tasked with
enforcing them (the police or other law-enforcement personnel). They can take
the form of time, place and manner restrictions or outright prohibitions. However,
blanket legislative provisions, which ban assemblies at specific times or in particular
locations, require much greater justification than restrictions on individual assem-
blies.162 Given the impossibility of taking account of the specific circumstances of
each particular case, the incorporation of such blanket provisions in legislation, as
well as their application, may be disproportionate unless a pressing social need can
be demonstrated. As the European Court of Human Rights has stated, [s]weeping
measures of a preventive nature to suppress freedom of assembly and expression
other than in cases of incitement to violence or rejection of democratic principles
however shocking and unacceptable certain views or words used may appear
to the authorities, and however illegitimate the demands made may be do a dis-
service to democracy and often even endanger it.163

103. The organizer of an assembly should not be compelled or coerced either to accept
whatever alternative(s) the authorities propose or to negotiate with the authorities
about key aspects, particularly the time or place, of a planned assembly. To require
otherwise would undermine the very essence of the right to freedom of peaceful
assembly.

104. Prohibition of an assembly is a measure of last resort, only to be considered when a

less restrictive response would not achieve the purpose pursued by the authorities
in safeguarding other relevant interests. Given the states positive duty to provide
adequate resources to protect peaceful assembly, prohibition may actually repre-
sent a failure of the state to meet its positive obligations. Where a state body has
unlawfully prohibited an action, the state bears legal responsibility.
60

105. Freedom of association and freedom of peaceful assembly: Since the right to as-
semble presumes the active presence of others for its realization, restrictions of
freedom of association (Article 22 of the ICCPR and Article 11 of the ECHR) will
often undermine the right to assemble. Freedom of association encompasses the
ability of groups of individuals to organize collectively and to mobilize in protest
against the state and/or other interests. Restrictions on the right to freedom of
association that might undermine freedom of assembly include requiring formal
registration before an association can lawfully assemble, prohibiting the activities
of unregistered groups, prescribing the scope of an associations mandate,164 reject-
ing registration applications, disbanding or prohibiting an association, or imposing
onerous financial preconditions.

106. Like freedom of peaceful assembly, the right to associate is essential to the effective
functioning of democracy and civil society, and such restrictions to the freedom
of peaceful association can, therefore, rarely be justified. Furthermore, while the
right to associate within a political party, a trade union or other civic body may
logically precede the organization of public assemblies (see para. 53), the right to
freedom of peaceful assembly should never be made contingent upon registra-
tion as an association.165 As the European Court of Human Rights stated in Stankov
and the United Macedonian Organisation ILINDEN v. Bulgaria (2001) that while
past findings of national courts which have screened an association are undoubt-
edly relevant in the consideration of the dangers that its gatherings may pose, an
automatic reliance on the very fact that an organization has been considered an-
ti-constitutional and refused registration cannot suffice to justify under Article
11(2) of the Convention a practice of systematic bans on the holding of peaceful
assemblies.166

107. Indirect restrictions on freedom of assembly: Restrictions that have the effect
of burdening freedom of assembly should not be imposed on other rights unless
there is a compelling justification for doing so. It is noteworthy that restrictions
imposed on other rights often indirectly impact upon the enjoyment of the right
to freedom of peaceful assembly, and should, therefore, be taken into considera-
tion when assessing the extent to which a state has met its positive obligations to
protect freedom of assembly.167 For example, restrictions on liberty and freedom
of movement within the territory of a state (Article 12 of the ICCPR, Article 5 of the
ECHR and Article 2 of Protocol 4 of the ECHR), and across international borders
can prevent or seriously delay participation in an assembly.168 Similarly, restric-
tions that impact upon a states obligation to hold free elections (under Article 25
of the ICCPR 169 and Article 3, Protocol 1 of the ECHR) such as the detention of po-
litical activists or the exclusion of particular individuals from electoral lists,170 can
also indirectly curtail the right to freedom of assembly.
 61

108. Restrictions imposed during an assembly: The role of the police or other law-
enforcement personnel during an assembly will often be to enforce any prior
restrictions imposed in writing by the regulatory body. No additional restrictions
should be imposed by law-enforcement personnel unless absolutely necessary in
light of demonstrably changed circumstances. On occasion, however, the situa-
tion on the ground may deteriorate (participants, for example, might begin using
or inciting violence), and the authorities may have to impose further measures to
ensure that other relevant interests are adequately safeguarded. In the same way
that reasons must be adduced to demonstrate the need for prior restrictions, any
restrictions imposed in the course of an assembly must be just as rigorously justi-
fied. Mere suspicions will not suffice, and the reasons must be both relevant and
sufficient. In such circumstances, it will be appropriate for other civil authorities
(such as an ombudsmans office) to have an oversight role in relation to the policing
operation, and law-enforcement personnel should be accountable to an independ-
ent body. Furthermore, as noted in paras. 37 and 91, unduly broad discretionary
powers afforded to law-enforcement officials may breach the principle of legali-
ty, given the potential for arbitrariness. The detention of participants during an
assembly (on grounds that they have committed administrative, criminal or oth-
er offences) should meet a high threshold, given the right to liberty and security
of person and the fact that any interference with freedom of assembly is inevita-
bly time sensitive. Detention should be used only in the most pressing situations,
when failure to detain would result in the commission of serious criminal offences.

109. Sanctions and penalties imposed after an assembly: The imposition of sanctions
(such as prosecution) after an event may sometimes be more appropriate than the
imposition of restrictions prior to or during an assembly. For example, the Euro-
pean Court of Human Rights has held that prior restrictions imposed on the basis
of the possibility of minor incidents of violence are likely to be disproportionate.
Any isolated outbreak of violence should be dealt with by way of subsequent pros-
ecution or other disciplinary action instead of by prior restraint.171 It is noteworthy,
however, that the Human Rights Committee and the European Court of Human
Rights have on several occasions found subsequent sanctions to constitute dispro-
portionate interference with the right to freedom of assembly or expression.172 As
with prior restraints, the principle of proportionality also applies to liability arising
after the event. Any penalties specified in the law should, therefore, allow for the
imposition of minor sanctions where the offence concerned is of a minor nature.

110. Defences: Anyone charged with an offence relating to an assembly must enjoy the
right to a fair trial. All provisions that create criminal or administrative liability must
comply with the principle of legality (see paras. 35-38). Furthermore, organizers
of and participants in assemblies should benefit from a reasonable excuse de-
62

fence. For example, the organizer of an assembly should not face prosecution for
either underestimating or overestimating the number of expected participants in
an assembly if this estimate was made in good faith. Similarly, a participant in an
assembly should not be held liable for anything done under the direction of a law-
enforcement official 173 or for taking part in an unlawful assembly if the participant
was not aware of the unlawful nature of the event. Furthermore, if there are rea-
sonable grounds for non-compliance with the notification requirement, then no
liability or sanctions should adhere.

111. Individual participants in any assembly who themselves do not commit any violent
act should not be prosecuted, even if others in the assembly become violent or dis-
orderly. As stated in the decision in Ezelin v. France (1991),[i]t is not necessary
in a democratic society to restrict those freedoms in any way unless the person in
question has committed a reprehensible act when exercising his rights.174

112. Organizers of assemblies should not be held liable for the failure to perform their
responsibilities if they have made reasonable efforts to do so. Furthermore, organ-
izers should not be held liable for the actions of participants or third parties, or
for unlawful conduct that the organizers did not intend or directly participate in.
Holding the organizers of an event liable would be a manifestly disproportionate
response, since this would imply that organizers are imputed to have responsibili-
ty for acts by other individuals (including possible agents provocateurs) that could
not have been reasonably foreseen.
 63

5. Procedural Issues
Advance notification

113. It is not necessary under international human rights law for domestic legislation to
require advance notification about an assembly. Indeed, in an open society, many
types of assembly do not warrant any form of official regulation.175 Prior notifica-
tion should, therefore, only be required where its purpose is to enable the state to
put in place necessary arrangements to facilitate freedom of assembly and to pro-
tect public order, public safety and the rights and freedoms of others.

114. The UN Human Rights Committee has held that a requirement to give prior notice
of an assembly, while a de facto restriction on freedom of assembly, is compati-
ble with the permitted limitations laid down in Article 21 of the ICCPR.176 Similarly,
the European Commission on Human Rights stated in Rassemblement Jurassien
(1979) that: Such a procedure is in keeping with the requirements of Article 11(1),
if only in order that the authorities may be in a position to ensure the peaceful na-
ture of the meeting, and accordingly does not as such constitute interference with
the exercise of the right. 177

115. It is good practice to require notification only when a substantial number of par-
ticipants are expected or only for certain types of assembly. In some jurisdictions
there is no notice requirement for small assemblies (see the extracts from the laws
in Moldova and Poland, below), or where no significant disruption of others is rea-
sonably anticipated by the organizers (such as might require the redirection of
traffic).178 Furthermore, individual demonstrators should not be required to provide
advance notification to the authorities of their intention to demonstrate.179 Where
a lone demonstrator is joined by another or others, the event should be treated as
a spontaneous assembly (see paras. 126-131).

Article 3, Moldovas Law on Public Assemblies (2008): Definitions

Assemblies with a small number of participants are public assemblies
that gather less than 50 persons.

Article 12(5), Moldovas Law on Public Assemblies (2008): Exceptions

from notification
It is not obligatory to notify local public authorities in the case of
assemblies with a small number of participants.
64

Article 6, Polands Law on Assemblies (1990)

1. Assemblies organized in the open in areas accessible to unspecified
individuals, hereinafter referred to as public assemblies, must be
reported in advance to the commune authority with competence
ratione loci for the site of the assembly.
2. If the assembly is to be held in the neighbourhood of a diplomatic
representation/mission, consular offices, special missions or
international organizations, which are covered by diplomatic
immunities and privileges, the commune authority is obliged to notify
the responsible Police commander and the Ministry of Foreign Affairs.
3. The commune council may specify areas where the organization of
an assembly does not require notification.

116. Any notification process should not be onerous or bureaucratic, as this would
undermine the freedom to assemble by discouraging those who might wish to
hold an assembly. Furthermore, the period of notice should not be unnecessari-
ly lengthy (normally no more than a few days prior to the event), but should still
allow adequate time for the relevant state authorities to plan and prepare (for ex-
ample, by deploying police officers, equipment, etc.),180 for the regulatory body to
give a prompt official response to the initial notification, and for the completion of
an expeditious appeal to a tribunal or court should the legality of any restrictions
imposed be challenged. While laws may legitimately specify a minimum period of
advance notification for an assembly, any maximum period for notification should
not preclude advance planning for assemblies. When a certain time limit is set out
in the law, it should only be indicative.

117. The official receiving the notice should issue a receipt, explicitly confirming that the
organizers of the assembly are in compliance with applicable notice requirements
(see the example from Moldova, below). The notice should also be communicat-
ed immediately to all state organs involved in the regulatory process, including the
relevant law-enforcement agencies.

Article 10(3), Moldovas Law on Public Assemblies (2008)

10(3) The local public administration authority shall register the prior
declaration and issue to the organizer a stamped copy, which should
contain the number, date and hour of registration of the declaration.
 65

118. Notification, not authorization: Any legal provisions concerning advance noti-
fication should require the organizers to submit a notice of the intent to hold an
assembly, but not a request for permission.181 A permit requirement is more prone
to abuse than a notification requirement, and may accord insufficient value to the
fundamental freedom to assemble and the corresponding principle that every-
thing not regulated by law should be presumed to be lawful. It is significant that,
in a number of jurisdictions, permit procedures have been declared unconstitu-
tional.182

119. Nonetheless, a permit requirement based on a legal presumption that a permit

for the use of a public place will be issued (unless the regulatory authorities can
provide evidence to justify a denial) can serve the same purpose as advance noti-
fication.183 Those countries in which a permit is required are encouraged to amend
domestic legislation so as to require only notification.184 Any permit system must
clearly prescribe in law the criteria for issuance of a permit. In addition, the crite-
ria should be confined to considerations of time, place and manner, and should
not provide a basis for content-based regulation. As emphasized in paragraphs
94-98, the authorities must not deny the right to assemble peacefully simply be-
cause they disagree with the merits of holding an event for the organizers stated
purpose.185

120. There should be provision in law that, in the event of a failure on the part of the au-
thorities to respond promptly to notification for an event, the organizers of a public
assembly may proceed with the activities according to the terms provided in the
notification without restriction (see the example from the Armenian law, below).
Even in countries where authorization, rather than notification, is still required, au-
thorization should be presumed granted if a prompt response is not given.

Article 12, Armenias Law on Conducting Meetings, Assemblies,

Rallies and Demonstrations (2008)
1. The authorized body shall consider the notification within 72 hours of
receiving it, in the order in which notifications have been received.

8. Should the authorized body not issue a decision prohibiting the
convention of the mass public event within 72 hours of receiving the
notification, the organizers shall have the right to conduct the mass
public event on the terms and conditions set forth in the notification.
66

121. If more people than anticipated by the organizers gather at an assembly for which
notification has been given, the relevant law-enforcement agencies should facili-
tate the assembly so long as the participants remain peaceful (see also Defences,
in paras. 110-112).

122. Simultaneous assemblies: All persons and groups have an equal right to be present
in public places to express their views. Where notification is submitted for two or
more assemblies for the same place and time, the events should be held together
if they can be accommodated.186 If this is not possible (due, for example, to lack of
space), the parties should be encouraged to engage in dialogue to find a mutually
satisfactory resolution. Where such a resolution cannot be found, the authori-
ties may seek to resolve the issue by adopting a random method of allocating the
events to particular locations, so long as this does not discriminate between differ-
ent groups. This may, for example, be a first come, first served rule, although the
abuse of such a rule (where notification about an assembly is deliberately submit-
ted early to block access to other events) should not be allowed. The authorities
may even hold a ballot to determine which assembly should be held in the loca-
tion provided in the notification (see the example from the law in Malta, below).
A prohibition against conducting public events in the same place and at the same
time of another public event where they can both be reasonably accommodated
is likely to be a disproportionate response.

Article 5(3), Maltas Public Meetings Ordinance (1931)

When two or more persons, whether as individuals or on behalf of an
association, simultaneously give notice of their intention of holding
a meeting in the same locality and at the same time, preference shall
be given to the person whose name is extracted in a draw held by the
Commissioner of Police or any other Police officer deputed by him.

123. Counter-demonstrations: Persons have a right to assemble as counter-demon-

strators to express their disagreement with the views expressed at another public
assembly.187 On such occasions, the coincidence in time and venue of the two assem-
blies is likely to be an essential part of the message to be conveyed by the second
assembly. Such related simultaneous assemblies should be facilitated so that they
occur within sight and sound of their target in so as far as this does not physically
interfere with the other assembly (see paras. 33, 45 and 101).

124. Nonetheless, as clearly stated in the European Court of Human Rights case of
Plattform rzte fr das Leben v. Austria (1988), the right to counter-demon-
 67

strate cannot extend to inhibiting the exercise of the right to demonstrate.188

Thus, because each person or group has a right to express their views undisrupt-
ed by others, counter-demonstrators may not disrupt the activities of those who
do not share their views. Emphasis should be placed on the states duty to pre-
vent disruption of the main event where counter-demonstrations are organized.189
Furthermore, a clear question is raised where the intention of the organizers of a
counter-demonstration is specifically to prevent the other assembly from taking
place effectively, to deny the rights of others. In such cases, Article 5 of the IC-
CPR and Article 17of the ECHR may be engaged, and the counter-demonstration
will not enjoy the protection afforded according to the right to freedom of peace-
ful assembly (see para. 15).

Exceptions from the notification process

125. It will be up to the legislature in each jurisdiction to determine whether there should
be any specific exceptions from the notification process. Exceptions must not be
discriminatory in effect and should be targeted towards a class of assembly rath-
er than a class of organizer.

126. Spontaneous assemblies: A spontaneous assembly is generally regarded as one

organized in response to some occurrence, incident, other assembly or speech,
where the organizer (if there is one) is unable to meet the legal deadline for pri-
or notification, or where there is no organizer at all. Such assemblies often occur
around the time of the triggering event, and the ability to hold them is important
because delay would weaken the message to be expressed.190

127. While the term spontaneous does not preclude the existence of an organizer of
an assembly, spontaneous assemblies may also include gatherings with no iden-
tifiable organizer. Such assemblies are coincidental and occur when a group of
persons gathers at a particular location with no prior advertising or invitation.
These are often the result of some commonly held knowledge or knowledge dis-
seminated via the Internet about a particular event (such as a visit by a foreign head
of state).191 Numbers may be swelled by passers-by who choose to join the assem-
bly, although it is also possible that, once a crowd begins to gather, mobilization
can be achieved by various forms of instantaneous communication (telephone,
text message, word of mouth, the Internet, etc). Such communication should not,
of itself, be interpreted as evidence of prior organization. Where a lone demon-
strator is joined by another or others, the gathering should be treated similarly to
a spontaneous assembly.
68

Moldovas Law on Public Assemblies (2008):

Article 3, Main definitions
For the purposes of this Law: () a spontaneous assembly shall mean
an assembly, that has been initiated and organized as a direct and
immediate response to social events and which, in the opinion of
participants, cannot be postponed and, as a result, for which the usual
notification procedure is not possible

Article 12, Exceptions from notification

(1) In the cases of spontaneous assemblies, notification is allowed
without formal written conformation or within the provided 5 days prior
the organization of the assembly; it is sufficient to communicate the
place, data, time, scope and the organizers
(2) The organizers exercise the right to spontaneous assembly
provided in (1) with good-faith and inform the local public authorities
immediately about their intention as it becomes known in order to
facilitate the provision of the necessary services by the local public
authorities.

Article 10(1), Armenias Law on Conducting Meetings, Assemblies,

Rallies and Demonstrations (2008)
With the exception of spontaneous public events, mass public events
may be conducted only after notifying the authorized body in writing.

Section 6(2)(b), Northern Irelands Public Processions Act (1998)

Where notification is not reasonably practicable notification should
be given as soon as it is reasonably practicable.

128. Spontaneous assemblies should be lawful and are to be regarded as an expectable

(rather than exceptional) feature of a healthy democracy. Of course, the ability of
the organizers of an assembly to meet a deadline for prior notification will depend
on how early the deadline is set (and these requirements vary significantly among
participating States). Laws regulating freedom of assembly should explicitly pro-
vide either for exemption from prior-notification requirements for spontaneous
assemblies (where giving advance notice is impracticable) or for a shortened no-
tification period (whereby the organizer must notify the authorities as soon as is
practicable). Such an exception would only apply in circumstances where an or-
ganizer is unable to meet the legally established deadline.192 It is appropriate that
organizers should inform the authorities of their intention to hold an assembly as
 69

early as possible. Only in this way can the authorities reasonably be expected to
fulfil their positive obligations to protect the assembly, maintain public order and
uphold the rights and freedoms of others.

129. The European Court of Human Rights has clarified what it considers should consti-
tute such special circumstances (i.e., when the right to hold spontaneous events
may override the obligation to give prior notification). These circumstances arise
if an immediate response to a current event is warranted in the form of a demon-
stration. In particular, such derogation from the general rule may be justified if a
delay would have rendered that response obsolete.193

130. Whether a specific organizer was unable to meet the deadline for prior notifica-
tion or whether a delay in holding the assembly would have rendered its message
obsolete are questions of fact and must be decided according to the particular
circumstances of each case. For example, even within a sustained, long-running
protest campaign (which might ordinarily suggest that timely notification would
be possible) there may be events of urgent or special significance to which an im-
mediate response by way of a spontaneous assembly would be entirely justified.

131. Even where no such exemption for spontaneous assemblies exists in the law, the
authorities should still protect and facilitate any spontaneous assembly so long as
it is peaceful in nature. The European Court of Human Rights has stated that a
decision to disband such assemblies solely because of the absence of the requisite
prior notice, without any illegal conduct by the participants, amounts to a dispro-
portionate restriction on freedom of peaceful assembly.194

Decision-making and review processes

132. The regulatory authority should make publicly available a clear explanation of the
decision-making procedures. It should fairly and objectively assess all available in-
formation to determine whether the organizers and participants in an assembly
for which they have received notification are likely to conduct the event in a peace-
ful manner and to ascertain the probable impact of the event on the rights and
freedoms of non-participant stakeholders. In doing so, it may be necessary to fa-
cilitate meetings with the event organizers and other interested parties.

133. The regulatory authority should also ensure that any relevant concerns raised are
communicated to the event organizers, who should be offered an opportunity to
respond to any concerns raised. This is especially important if these concerns might
later be cited as the basis for imposing restrictions on the event. Providing the organ-
izers with such information allows them the opportunity to address the concerns,
70

thus diminishing the potential for disorder and helping foster a co-operative, rath-
er than confrontational, relationship between the organizers and the authorities.

134. The organizers of an assembly, the designated regulatory authorities, law-enforce-

ment officials and other parties whose rights might be affected by an assembly
should make every effort to reach mutual agreement on the time, place and manner
of an assembly. If, however, agreement is not possible and no obvious resolution
emerges, negotiation or mediated dialogue may help reach a mutually agreeable
accommodation in advance of the date provided in the notification for the assem-
bly. Genuine dialogue between relevant parties can often yield a more satisfactory
outcome for everyone involved than formal recourse to the law. The facilitation of
negotiations or mediated dialogue can usually best be performed by individuals
or organizations not affiliated with either the state or the organizer. The presence
of these parties legal representatives may also assist in facilitating discussions be-
tween the organizers of the assembly and law-enforcement authorities. Such a
dialogue is usually most successful in establishing trust between parties if it is be-
gun at the earliest possible opportunity. While not always successful, it serves as
a preventive tool to help avoid the escalation of conflict or the imposition of arbi-
trary or unnecessary restrictions.

135. Any restrictions placed on an assembly should be communicated in writing to or-

ganizers of the event, with a brief explanation of the reason for each restriction
(noting that these explanations must correspond with the permissible grounds en-
shrined in human rights law and as interpreted by the relevant courts). The burden
of proof should be on the regulatory authority to show that the restrictions imposed
are reasonable in the circumstances.195 Such decisions should also be communicat-
ed to the organizers within a reasonable time-frame i.e., sufficiently in advance of
the date of a proposed event to allow the decision to be appealed to an independ-
ent tribunal or court before the date provided in the notification for the event.

136. The regulatory authority should publish its decisions so that the public has access
to reliable information about events taking place in the public domain. This might
be done, for example, by posting decisions on a dedicated website.196

137. The organizers of an assembly should have recourse to an effective remedy through
a combination of administrative and judicial review. The availability of effective ad-
ministrative review can both reduce the burden on courts and help build a more
constructive relationship between the authorities and the public. Any administra-
tive review procedures must be sufficiently prompt to enable judicial review to take
place once administrative remedies have been exhausted, prior to the date of the
assembly provided in the notification.
 71

138. Ultimately, the organizers of an assembly should be able to appeal the decision of
the regulatory authority to an independent court or tribunal. This should be a de
novo review, empowered to quash the contested decision and to remit the case
for a new ruling. The burden of proof and justification should remain on the regu-
latory authorities. Any such review must also be prompt, so that the case is heard
and the court ruling published before the date for the planned assembly (see para.
66). This makes it possible to hold the assembly if the court invalidates the restric-
tions.197 To expedite this process, the courts should be required to give priority to
appeals concerning restrictions on assemblies. The law may also provide for the
option of granting organizers injunctory relief. That is, in the case that a court is
unable to hand down a final decision prior to the planned assembly, it should have
the power to issue a preliminary injunction. The issuance of an injunction by the
court in the absence of the possibility of a final ruling must necessarily be based
on the courts weighing of the consequences of such an issuance.

Article 14(2), Georgias Law on Assemblage and Manifestations (1997,

as amended 2009)
A decision of a local governance body forbidding the holding of an
assemblage or manifestation may be appealed in a court. The court
shall hand down a final decision within two working days.

Article 7, Kyrgyz Republics Law on the Right of Citizens to Assemble

Peacefully, without Weapons, and to Freely Conduct Meetings and
Demonstrations (2002)
... A decision of bodies of local State administration or local self-
government... is subject to court appeal, and shall be considered by the
court within 24 hours if less than 48 hours remains before the planned
public assembly.

139. The parties and the reviewing body should have access to the evidence on which
the regulatory authority based its initial decision (such as relevant police reports,
risk assessments or other concerns or objections raised). Only then can the propor-
tionality of the restrictions imposed be assessed fully. If such access is refused by
the authorities, the parties should be able to obtain an expeditious judicial review
of the decision to withhold the evidence.198 The disclosure of information enhanc-
es accessibility and transparency, as well as the prospects for the co-operative and
early resolution of any contested issues.
72

140. It is good practice for the regulatory authority to have a legal obligation to keep
the regulatory framework under review and to make recommendations for its im-
provement. It is also good practice for the regulatory authority to submit an annual
report on its activity (including relevant statistics on, for example, the number of
assemblies for which it received notification and the number that were restricted)
to an appropriate supervisory body, such as a national human rights institution,
ombudsman or parliament.199 At the very least, the regulatory authority should
publish annual statistics and make these accessible to the public.200
 73

PART II

Implementing Freedom
of Peaceful Assembly Legislation

Introduction

141. Part I of these Guidelines focused on the parameters of freedom of assembly and
the drafting of legislation consistent with international human rights standards.
These earlier sections addressed the substantive grounds for restriction and the
procedures that accord priority to the freedom to assemble. The implementation
of freedom of assembly legislation, however, brings with it different challenges.
If laws are to provide more than mere paper guarantees, and if rights are to be
practical and effective rather than theoretical or illusory, the implementation by
domestic law-enforcement agencies of laws relating to freedom of assembly must
also meet exacting standards. These standards are the subject of this second sec-
tion.

142. The socio-economic, political and institutional context in which assemblies take
place often impacts upon the success of steps taken to implement the law. It is vital
to note, however, that the presence of certain socio-economic or political factors
does not, of itself, make violence at public assemblies inevitable. Indeed, violence
can often be averted by the skilful intervention of law-enforcement officials, munic-
ipal authorities and other stakeholders, such as monitors and stewards. Measures
taken to implement freedom of assembly legislation should, therefore, neither un-
duly impinge on the rights and freedoms of participants or other third parties nor
further aggravate already tense situations by being unnecessarily confrontation-
al. Such interventions must, instead, aim to minimize potential harm. The guiding
principles outlined in chapter 3 (including non-discrimination and good adminis-
tration) are of particular relevance at the implementation stage.

143. Furthermore, the law-enforcement agencies and judicial system in participating

States play a crucial role in the prevention of violence and the apprehension and
74

prosecution of offenders. It was often emphasized during the roundtable sessions

that were part of the drafting of the first edition of these Guidelines that the inde-
pendence of both law-enforcement personnel and the judiciary from the influence
of partisan interests or, in the particular case of the judiciary, from interference by
the executive branch must be assured. Law-enforcement personnel in some juris-
dictions have, in the past, failed to intervene to protect peaceful assemblies. States
are urged to implement measures (including policy-development and targeted re-
cruitment initiatives) to increase trust and confidence in the law-enforcement and
justice systems.201
 75

6. Policing Public Assemblies

144. The diversification of protest tactics and new modes of communication undoubt-
edly present challenges for the policing of public assemblies. Nonetheless, the role
of law-enforcement officials goes beyond recognizing the existence of fundamen-
tal rights and includes positively safeguarding those rights (see paras. 31-34 and
104).202 This obligation derives from the states general duty to secure to everyone
within their jurisdiction the rights and freedoms defined in the ECHR.203

A human rights approach to policing

145. A human rights approach to policing assemblies first requires that the authorities
consider their duty to facilitate the enjoyment of the right to freedom of peace-
ful assembly. The state has a positive duty to take reasonable and appropriate
measures to enable peaceful assemblies to take place without participants fearing
physical violence.204 More broadly, the state also has a positive obligation to pro-
tect the right to life (Article 6 of the ICCPR, Article 2 of the ECHR) and the right to
freedom from inhuman or degrading treatment (Article 7 of the ICCPR, Article 3
of the ECHR). These rights enshrine some of the most basic values protected by
international human rights law, from which no derogation is permitted.205 The po-
licing of assemblies must also be informed by the principles of legality, necessity,
proportionality and non-discrimination (see chapter 3).

146. The rights of law-enforcement personnel should be recognized: In the fulfilment

of their obligation to protect human rights, law-enforcement personnel should
plainly also pay regard to the rights, health and safety of police officers and other
law-enforcement personnel. The nature of their job may place them in difficult and
dangerous situations, in which they have to make split-second judgments based
upon uncertain and rapidly evolving information. On occasion, law-enforcement
officers may suffer the emotional, physical and behavioural consequences of post
traumatic or critical-incident stress. In such cases, law-enforcement agencies should
have recourse to skilled mental-health professionals to facilitate confidential indi-
vidual debriefings.206

Training

147. Governments must ensure that law-enforcement officials receive adequate train-
ing in the policing of public assemblies. Training should equip law-enforcement
agencies to act in a manner that avoids escalation of violence and minimizes con-
flict, and should include soft skills, such as negotiation and mediation. Training
76

should also include relevant human rights issues207 and should cover the control
and planning of policing operations, emphasizing the imperative of minimizing
recourse to force to the greatest extent possible.208 In this way, training can help
ensure that the culture and ethos of law-enforcement agencies adequately priori-
tizes a human-rights-centred approach to policing.

148. The UN Code of Conduct for Law Enforcement Officials, together with other
relevant international human rights standards,209 should form the core of law-en-
forcement training. Domestic legislation should also provide standards that will
guide the actions of law-enforcement personnel, and such provisions should be
covered in the preparation and planning for major events. A diversity awareness
perspective should be integrated into the development and implementation of law-
enforcement training, policy and practice.

Extract from OSCE Guidebook on Democratic Policing (2008): Use of

Force paragraph 72 (references omitted)
72. Police officers should be trained in proficiency standards in the use
of force, alternatives to the use of force and firearms, including the
peaceful settlement of conflict, the understanding of crowd behaviour,
and the methods of persuasion, negotiation and mediation, as well as
technical means, with a view to limiting the use of force and firearms.
Practical training should be as close to reality as possible. Only
officers whose proficiency in the use of force has been tested and who
demonstrate the required psychological skills should be authorized to
carry guns.

Extract from the European Committee for the Prevention of Torture

and Inhuman or Degrading Treatment or Punishment (CPT), 2nd
General Report: 210 Training of law enforcement personnel
59. the CPT wishes to emphasise the great importance it attaches
to the training of law enforcement personnel (which should include
education on human rights matters - cf. also Article 10 of the United
Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment). There is arguably no better
guarantee against the ill-treatment of a person deprived of his liberty
than a properly trained police or prison officer. Skilled officers will be
able to carry out successfully their duties without having recourse to ill-
treatment and to cope with the presence of fundamental safeguards for
detainees and prisoners.
 77

60. In this connection, the CPT believes that aptitude for interpersonal
communication should be a major factor in the process of recruiting
law enforcement personnel and that, during training, considerable
emphasis should be placed on developing interpersonal communication
skills, based on respect for human dignity. The possession of such skills
will often enable a police or prison officer to defuse a situation which
could otherwise turn into violence, and more generally, will lead to
a lowering of tension, and raising of the quality of life, in police and
prison establishments, to the benefit of all concerned.

Policing assemblies general principles of good practice

149. Law-enforcement agencies should be proactive in engaging with assembly organ-

izers: Officers should seek to send clear messages that inform crowd expectations
and reduce the potential for conflict escalation.211 Furthermore, there should be a
point of contact within the law-enforcement agency whom protesters can contact
before or during an assembly. These contact details should be widely advertised.212

150. The policing operation should be characterized by a policy of no surprises:

Law-enforcement officers should allow time for people in a crowd to respond as
individuals to the situation they face, including any warnings or directions given to
them.213

151. Law-enforcement command structures should be clearly established: Clear-

ly identifiable command structures and well-defined operational responsibilities
enable proper co-ordination between law-enforcement personnel, and between
law-enforcement agencies and the assembly organizers, as well as helping to en-
sure accountability for operational decisions.

152. Inter-agency communication should be ensured: It is imperative that law-en-

forcement officials and the representatives of regulatory authorities and other
public-safety agencies (fire and ambulance services, for example) are able to com-
municate with one another and exchange data during public assemblies. As chapter
7 emphasizes, it is also vital that the organizers of an assembly do everything with-
in their power to assist these agencies in responding to emergencies or criminal
conduct. Thorough inter-agency contingency planning can help ensure that lines
of communication are maintained.214
78

153. Law-enforcement personnel should be clearly and individually identifiable: When

in uniform, law-enforcement personnel must wear or display some form of iden-
tification (such as a nameplate or number) on their uniform and/or headgear and
not remove or cover this identifying information or prevent persons from reading
it during an assembly.

154. Intrusive anticipatory measures should not be used: Unless a clear and present
danger of imminent violence actually exists, law-enforcement officials should not
intervene to stop, search or detain protesters en route to an assembly. 215

155. Powers to intervene should not always be used: The presence of police (or other
law-enforcement) powers to intervene in or disperse an assembly, or to use force,
does not mean that such powers should always be exercised to enforce the law.
Where an assembly occurs in violation of applicable laws, but is otherwise peace-
ful, non-intervention or active facilitation may sometimes be the best way to ensure
a peaceful outcome. In many cases, the dispersal of an event may create more law-
enforcement problems than its accommodation and facilitation, and overzealous
or heavy-handed policing is likely to significantly undermine police-community re-
lationships. Furthermore, the policing costs of protecting freedom of assembly and
other fundamental rights are likely to be significantly lower than the costs of polic-
ing disorder borne of repression. Post-event prosecution for violations of the law
remains an option.

156. The response of law-enforcement agencies must be proportionate: A wide range

of options are available to the relevant authorities, and their choice is not simply
one between non-intervention or the enforcement of prior restrictions and termi-
nation or dispersal.

157. Using mediation or negotiation to de-escalate tensions during an assembly: If a

stand-off or dispute arises during the course of an assembly, negotiation or me-
diated dialogue may be an appropriate means of trying to reach an acceptable
resolution. As noted in paragraph 142, such interventions can significantly help
avert the occurrence of violence. The Municipality of Warsaw, for example, de-
ploys civil servants with previous experience in dealing with assemblies who may
be present at an assembly and who can facilitate communication between the
organizers and law-enforcement officials.216 (See para. 134, regarding the use of
negotiation and/or mediation to help resolve disputes in advance of assemblies).

158. Law-enforcement officials should differentiate between participants and non-

participants: The policing of public assemblies should be sensitive to the possible
presence of non-participants (such as accidental bystanders or observers) in the
 79

vicinity of an assembly.217 See, further, the discussion of kettling218 in paragraph

160.

159. Law-enforcement officials should differentiate between peaceful and non-peace-

ful participants: Neither isolated incidents of sporadic violence nor the violent acts
of some participants in the course of a demonstration are themselves sufficient
grounds to impose sweeping restrictions on peaceful participants in an assembly.219
Law-enforcement officials should not, therefore, treat a crowd as homogenous in
detaining participants or (as a last resort) forcefully dispersing an assembly. 220 See,
further, the discussion of kettling in paragraph 160.

160. Strategies of crowd control that rely on containment (a tactic known in the
United Kingdom as kettling) must only be used exceptionally: Such strategies
tend to be indiscriminate, in that they do not distinguish between participants and
non-participants, or between peaceful and non-peaceful participants. While it is un-
doubtedly the case that allowing some individuals to cross a police line while, at the
same time, preventing others from doing so can exacerbate tensions, an absolute
cordon permitting no egress from a particular area potentially violates individual
rights to liberty and freedom of movement.221 As noted by the United Kingdoms
Joint Committee on Human Rights, it would be a disproportionate and unlawful
response to cordon a group of people and operate a blanket ban on individuals
leaving the contained area, as this fails to consider whether individual circumstanc-
es require a different response.222

Section 108, District of Columbia, United States, First Amendment

Rights and Police Standards Act (2004)
Use of police lines
No emergency area or zone will be established by using a police line
to encircle, or substantially encircle, a demonstration, rally, parade,
march, picket line, or other similar assembly (or subpart thereof)
conducted for the purpose of persons expressing their political, social,
or religious views except where there is probable cause to believe that
a significant number or percentage of the persons located in the area
or zone have committed unlawful acts (other than failure to have an
approved assembly plan) and the police have the ability to identify
those individuals and have decided to arrest them; provided, that this
section does not prohibit the use of a police line to encircle an assembly
for the safety of the demonstrators.
80

161. Protocols for the stop and search, detention or arrest of participants should be
established: It is of paramount importance that states establish clear and prospec-
tive protocols for the lawful stop and search or arrest of participants in assemblies.
Such protocols should provide guidance as to when such measures are appropri-
ate and when they are not, how they should be conducted, and how individuals
are to be dealt with following arrest. In drafting these protocols, regard should
be paid to international jurisprudence concerning the rights to private and family
life, to liberty and to freedom of movement. While mass arrests are to be avoid-
ed, there may be occasions involving public assemblies when numerous arrests
are deemed necessary. However, large numbers of participants should not be de-
prived of their liberty simply because the law-enforcement agencies do not have
sufficient resources to effect individual arrests adequate resourcing forms part of
the positive obligation of participating States to protect the right to assemble (see
paras. 31-34 and 104).223 The retention of fingerprints, cellular samples and DNA
profiles of persons suspected but not convicted of offences must be strictly limit-
ed by law.224

162. Detention conditions must meet minimum standards: Where individuals are de-
tained, the authorities must ensure adequate provision for first aid, basic necessities
(water and food), the opportunity to consult with lawyers, and the separation of
minors from adults, and male from female detainees. Detainees must not be ill-
treated while being held in custody.225 Where detention facilities are inadequate
to deal with the number of individuals, arrested individuals must be freed, unless
doing so would pose a threat to public safety. Procedures must be established to
limit the duration of detention to a strict minimum.

163. Facilitating peaceful assemblies that do not comply with the requisite precondi-
tions or that substantially deviate from the terms of notification: If the organizers
fail or refuses to comply with any requisite preconditions for the holding of an as-
sembly (including valid notice requirements and necessary and proportionate
restrictions based on legally prescribed grounds), they might face prosecution. The
European Court of Human Rights has stated that a decision to disband such as-
semblies solely because of the absence of the requisite prior notice, without any
illegal conduct by the participants, amounts to a disproportionate restriction on
freedom of peaceful assembly.226 Such events may include flash mobs (defined
in note 39) the raison d tre of which demands an element of surprise that would
be defeated by prior notification. Such assemblies should still be accommodated
by law-enforcement authorities as far as possible. If a small assembly is scheduled
to take place and, on the day of the event, turns into a significantly larger assembly
because of an unexpectedly high turnout, the assembly should be accommodated
by law-enforcement authorities and should be treated as being lawful so long as
 81

it remains peaceful. As stated in Basic Standard 4 of Amnesty Internationals Ten

Basic Human Rights Standards for Law Enforcement Officials,227 law-enforce-
ment personnel should [a]void using force when policing unlawful but non-violent
assemblies.

164. Policing peaceful assemblies that turn into non-peaceful assemblies: Assemblies
can change from being peaceful to non-peaceful and, thus, forfeit the protection
afforded under human rights law (see paras. 25-28). Such assemblies may thus
be terminated in a proportionate manner. However, the use of violence by a small
number of participants in an assembly (including the use of inciteful language)
does not automatically turn an otherwise peaceful assembly into a non-peaceful
assembly, and any intervention should aim to deal with the particular individuals
involved rather than dispersing the entire event.

165. Dispersal of assemblies: So long as assemblies remain peaceful, they should not be
dispersed by law-enforcement officials. Indeed, the dispersal of assemblies should
be a measure of last resort and should be governed by prospective rules informed
by international standards. These rules need not be elaborated in legislation but
should be expressed in domestic law-enforcement guidelines, and legislation
should require that such guidelines be developed. Guidelines should specify the
circumstances that warrant dispersal and who is entitled to issue dispersal orders
(for example, only police officers of a specified rank and above).

166. Dispersal should not occur unless law-enforcement officials have taken all reason-
able measures to facilitate and protect the assembly from harm (including by, for
example, quieting hostile onlookers who threaten violence) and unless there is an
imminent threat of violence.228

Extract from Section 107, District of Columbia, United States, First

Amendment Rights and Police Standards Act (2004):
(d) The [police] shall not issue a general order to disperse to
participants in a[n]... assembly except where:

(1) A significant number or percentage of the assembly participants

fail to adhere to the imposed time, place, and manner restrictions,
and either the compliance measures set forth in subsection (b) of this
section have failed to result in substantial compliance or there is no
reasonable likelihood that the measures set forth in subsection (b) of
this section will result in substantial compliance;
 (2) A significant number or percentage of the assembly participants are
engaging in, or are about to engage in, unlawful disorderly conduct or
violence toward persons or property; or

(3) A public safety emergency has been declared by the Mayor that
is not based solely on the fact that the First Amendment assembly is
occurring, and the Chief of Police determines that the public safety
concerns that prompted the declaration require that the... assembly be
dispersed.

(e)(1) If and when the [police] determines that a[n]... assembly, or part

thereof, should be dispersed, the [police] shall issue at least one clearly
audible and understandable order to disperse using an amplification
system or device, and shall provide the participants a reasonable and
adequate time to disperse and a clear and safe route for dispersal.

(2) Except where there is imminent danger of personal injury or

significant damage to property, the MPD shall issue multiple dispersal
orders and, if appropriate, shall issue the orders from multiple
locations. The orders shall inform persons of the route or routes by
which they may disperse and shall state that refusal to disperse will
subject them to arrest.

(3) Whenever possible, MPD shall make an audio or video recording of

orders to disperse.

167. Dispersal should not, therefore, result where a small number of participants in an
assembly act in a violent manner. In such instances, action should be taken against
those particular individuals. Similarly, if agents provocateurs infiltrate an otherwise
peaceful assembly, the authorities should take appropriate action to remove the
agents provocateurs rather than terminating or dispersing the assembly or declar-
ing it to be unlawful (see paras. 131 and 163, regarding the facilitation of peaceful
assemblies, even where the organizers have not complied with the requisite pre-
conditions established by law).

168. If dispersal is deemed necessary, the assembly organizers and participants should
be clearly and audibly informed prior to any intervention by law-enforcement per-
 83

sonnel. Participants should also be given reasonable time to disperse voluntarily.

Only if participants then fail to disperse may law-enforcement officials intervene
further. Third parties (such as monitors, journalists and photographers) may also
be asked to disperse, but they should not be prevented from observing and re-
cording the policing operation (see Chapter 8: Monitoring Freedom of Peaceful
Assembly and Use of force, in paras. 171-178).

169. Photography and video recording (by both law-enforcement personnel and par-
ticipants) should not be restricted, but data retention may breach the right to
private life: During public assemblies the photographing or video recording of par-
ticipants by law-enforcement personnel is permissible. However, while monitoring
individuals in a public place for identification purposes does not necessarily give
rise to interference with their right to private life,229 the recording of such data and
the systematic processing or permanent nature of the record created and retained
might give rise to violations of privacy.230 Moreover, photographing or making video
recordings of assemblies for the purpose of gathering intelligence can discourage
individuals from enjoying the freedom to assemble and should, therefore, not be
done routinely. The photographing or video recording of the policing operation by
participants and other third parties should not be prevented, and any requirement
to surrender film or digitally recorded images or footage to the law-enforcement
agencies should be subject to prior judicial scrutiny. 231 Law-enforcement agencies
should develop and publish a policy related to their use of overt filming/photog-
raphy at public assemblies.232

170. Post-event debriefing of law-enforcement officials (particularly after non-routine

events) should become standard practice: Debriefing might usefully address a
number of specific issues, including human rights, health and safety, media safe-
ty, community impact, operational planning and risk assessment, communications,
command and decision-making, tactics, resources and equipment, and future train-
ing needs. Event organizers should be invited to participate in debriefing sessions
held by law-enforcement officials after the assembly.

Use of force

171. The inappropriate, excessive or unlawful use of force by law-enforcement au-

thorities can violate fundamental freedoms and protected rights, undermine
police-community relationships, and cause widespread tension and unrest. The
use of force should, therefore, be regulated by domestic law. 233 Such provisions
should set out the circumstances that justify the use of force (including the need
to provide adequate prior warnings) as well as the level of force acceptable to deal
with various threats.
84

172. Governments should develop a range of means of response that enable a dif-
ferentiated and proportional use of force. These responses should include the
development of non-lethal incapacitating weapons for use in appropriate situa-
tions. Moreover, law-enforcement officers ought to be provided with self-defence
equipment, such as shields, helmets, fire-retardant clothing, and bullet-proof vests
and transport in order to decrease the need for them to use weapons of any kind.234
This, again, emphasizes the requirement that the state provide adequate resources
for its law-enforcement agencies in satisfaction of its positive duty to protect free-
dom of peaceful assembly.

173. International standards give detailed guidance regarding the use of force in the
context of dispersal of both unlawful, non-violent and unlawful, violent assemblies.
The UN Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials provide that [i]n the dispersal of assemblies that are unlawful but non-
violent, law enforcement officials shall avoid the use of force or, where that is not
practicable, shall restrict such force to the minimum extent necessary.235 The UN
Basic Principles also stipulate that [i]n the dispersal of violent assemblies, law
enforcement officials may use firearms only when less dangerous means are not
practicable and only to the minimum extent necessary .236

174. The right to life (Article 6 of the ICCPR, Article 2 of the ECHR) covers not only in-
tentional killing, but also instances where the use of force results in the deprivation
of life. Its protection entails a stricter and more compelling test of necessity, stip-
ulating that the force used must be strictly proportionate to the achievement of
the permitted aims.237 When assessing the use of force by law-enforcement offi-
cials, the European Court of Human Rights has applied the evidential standard,
beyond reasonable doubt.238 The burden or proof rests on the Government to
demonstrate with convincing arguments that the use of force was not excessive,239
and proof may follow from the coexistence of sufficiently strong, clear and con-
cordant inferences or similar unrebutted presumptions of fact .240 What will be
judged to be a reasonable action or reaction requires an objective and real-time
evaluation of the totality of circumstances.241

175. The OSCE Guidebook on Democratic Policing242 was published as a reference

source for good policing practice and internationally adopted standards. The fol-
lowing reproduces those principles most closely related to the use of force in the
context of freedom of peaceful assembly.
 85

Extract from OSCE Guidebook on Democratic Policing (2008): Use of

Force paras.9, 65-74 (references omitted)
9. [D]emocratic policing requires that the police simultaneously
stand outside of politics and protect democratic political activities
and processes (e.g. freedom of speech, public gatherings, and
demonstrations). Otherwise, democracy will be threatened.

65. Policing in a democratic society includes safeguarding the exercise

of democratic activities. Therefore, police must respect and protect the
rights of freedom of speech, freedom of expression, association, and
movement, freedom from arbitrary arrest, detention and exile, and
impartiality in the administration of law. In the event of unlawful but
non-violent assemblies, law enforcement officials must avoid the use of
force or, where this is not possible, limit its use to the minimum
66. In dispersing violent assemblies, firearms may be used only when
less dangerous means prove ineffective and when there is an imminent
threat of death or of serious injury. Firing indiscriminately into a violent
crowd is never a legitimate or acceptable method of dispersing it.
67. The police must have as their highest priority the respect for and the
protection of life. This principle has particular applications for the use
of force by police.
68. While the use of force is often indispensable to proper policing
in preventing a crime or in effecting or assisting in the lawful arrest of
offenders or suspected offenders police officers must be committed to
the principle that the use of force must be considered as an exceptional
measure, which must not be executed arbitrarily, but must be
proportionate to the threat, minimizing damage and injury, and used
only to the extent required to achieve a legitimate objective.
69. Law enforcement officials may not use firearms or lethal force
against persons except in the following cases: to act in legitimate self-
defence or the defence of others against the imminent threat of death or
serious injury; to prevent the perpetration of a particularly serious crime
involving grave threat to life; to arrest a person presenting such a danger
and resisting their authority; or to prevent his or her escape, and only
when less extreme means are insufficient to achieve these objectives. In
any event, intentional lethal use of firearms may only be made when
strictly unavoidable in order to protect life.70. If forced to use firearms,
law enforcement officials shall identify themselves as such and give a
clear warning of their intent to use firearms, with sufficient time for the
 warning to be observed, unless to do so would unduly place the law
enforcement officials at risk or would create a risk of death or serious
harm to other persons, or would be clearly inappropriate or pointless in
the circumstances of the incident.
71. Law enforcement officials must ensure that assistance and medical
aid are rendered to any injured or affected person at the earliest
possible moment and that relatives or close friends of the injured or
affected person are notified at the earliest possible moment.

73. In every instance in which a firearm is discharged, a report should be
made promptly to the competent authorities. (See also paragraph 89.)
74. The disproportionate use of force has to be qualified as a criminal
offence. Instances of the use of force must therefore be investigated to
determine whether they met the strict guidelines

176. The following principles should underpin all occasions when force is used in the
policing of public assemblies:
Where pepper spray or other irritant chemicals may be used, decontamina-
tion procedures must be set out;243
The use of attenuated energy projectiles (AEPs), baton rounds or plastic/rub-
ber bullets, water cannon and other forceful methods of crowd control must
be strictly regulated;244
Under no circumstances should force be used against peaceful demonstra-
tors who are unable to leave the scene; and
The use of force should trigger an automatic and prompt review process after
the event. It is good practice for law-enforcement officials to maintain a written
and detailed record of force used (including weapons deployed).245 Moreo-
ver, where injuries or deaths result from the use of force by law-enforcement
personnel, an independent, open, prompt and effective investigation must be
established (see, Liability and accountability in paras. 179-184).

177. It is vital that governments and law-enforcement agencies keep the ethical issues
associated with the use of force, firearms and emerging technologies constantly
under review.246 Standards concerning the use of firearms are equally applicable
to the use of other potentially harmful techniques of crowd management, such as
batons, horses, tear gas or other chemical agents, and water cannon.
 87

Section 15(2), Hungarys Act XXXIV on the Police (1994):

Of several possible and suitable options for Police measures or means
of coercion, the one which is effective and causes the least restriction,
injury or damage to the affected person shall be chosen.

Extract from: United States Department of Justice Principles for

Promoting Police 247
Policing requires that at times an officer must exercise control of a
violent, assaultive, or resisting individual to make an arrest, or to
protect the officer, other officers, or members of the general public from
a risk of imminent harm. Police officers should use only an amount of
force that is reasonably necessary to effectively bring an incident under
control, while protecting the lives of the officers and others.[]When
the use of force is reasonable and necessary, officers should, to the
extent possible, use an escalating scale of options and not employ more
forceful means unless it is determined that a lower level of force would
not be, or has not been, adequate. The levels of force that generally
should be included in the agencys continuum of force include: verbal
commands, use of hands, chemical agents, baton or other impact
weapon, canine, less-than-lethal projectiles, and deadly force.

178. Public-order policies and training programmes should be kept under review
to incorporate lessons learnt, and regular refresher courses should be provid-
ed to law-enforcement officials. These standards should be circulated as widely
as possible, and monitoring of their implementation should be performed by an
independent overseer, with investigative powers to compel witnesses and docu-
mentation and who publishes periodic reports.

Liability and accountability

179. Law-enforcement officials should be liable for any failure to fulfil their positive
obligations to protect and facilitate the right to freedom of peaceful assembly.
Moreover, liability should also extend to private agencies or individuals acting on
behalf of the state; the European Court of Human Rights has stated that the ac-
quiescence or connivance of the authorities of a Contracting State in the acts of
private individuals which violate the Convention rights of other individuals with-
in its jurisdiction may engage that States responsibility under the Convention. 248
88

180. The compliance of law-enforcement officials with international human rights stand-
ards should be closely monitored.249 It is good practice for an independent oversight
mechanism to review and report on any large-scale or contentious policing opera-
tion relating to public assemblies. In Northern Ireland, for example, human rights
experts from the police-oversight body (the Policing Board) have routinely mon-
itored all elements of police operations related to controversial assemblies. 250 A
police-complaints mechanism should be established where none exists, with a
range of potential resolutions at its disposal. In certain cases, there may also be a
monitoring role for the European Committee for the Prevention of Torture and In-
human or Degrading Treatment or Punishment. 251

181. Where a complaint is received regarding the conduct of law-enforcement officials

or where a person is seriously injured or is deprived of his or her life as a result of
the actions of law-enforcement officers, an effective official investigation must
be conducted.252 The core purpose of any investigation should be to secure the
effective implementation of domestic laws that protect the right to life and bod-
ily integrity, and in those cases involving state agents or entities, to ensure their
accountability for deaths or physical injuries occurring under their responsibility.
The particular form of investigation required to achieve those purposes may vary
according to the circumstances.253

182. If the force used is not authorized by law or more force was used than necessary in
the circumstances, law-enforcement officers should face civil and/or criminal liabil-
ity, as well as disciplinary action. The relevant law-enforcement personnel should
also be held liable for failing to intervene where such intervention may have pre-
vented other officers from using excessive force.

183. An applicant complaining of a breach of the right to life need only show that the
authorities did not do all that could reasonably be expected in the circumstances
to avoid the risk.254 Where allegations are made against law-enforcement officials
in relation to inhuman or degrading treatment or torture, the European Court of
Human Rights will conduct a particularly thorough scrutiny even if certain domes-
tic proceedings and investigations have already taken place.255

184. Specific definitions of terms such as self defence subject to important qualifi-
cations (such as a reasonableness test, and requirements that an attack was actual
or imminent and that there was no other less forceful response available) should
be contained in domestic criminal law.
 89

Paragraph 21.2 of the Moscow Meeting of the Conference on the

Human Dimension of the CSCE, 1991
(OSCE) participating States are urged to ensure that law enforcement
acts are subject to judicial control, that law enforcement personnel are
held accountable for such acts, and that due compensation may be
sought, according to domestic law, by the victims of acts found to be in
violation of the above commitments.

Paragraph 7 of the UN Basic Principles on the Use of Force and

Firearms by Law Enforcement Officials
[G]overnments shall ensure that the arbitrary or abusive use of force
and firearms by law enforcement officials is punished as a criminal
offence under their law. 256

Extract from Report of the Special Commission of Experts on the

Demonstrations, Street Riots and Police Measures in September-
October 2006, in Budapest, Hungary (February 2007) at p.11
The Commission recommends that the Government draft a bill that
ensures the possibility of legal remedy in case of unlawful riot control
actions or in case police officers, acting individually or in groups,
infringe the requirement of proportionality.
90

7. Responsibilities of the Organizer

The organizer

185. The organizer is the person or persons with primary responsibility for the assembly.
It is possible to define the organizer as the person in whose name prior notifica-
tion is submitted. As noted in paragraph 127, it is also possible for an assembly not
to have any identifiable organizer.

Article 5, Montenegros Public Assembly Act (2005)

The organizer of a peaceful assembly is any legal or physical entity
(henceforth referred to as: the organizer) which, in line with this Act,
organizes, holds and supervises the peaceful assembly. Peaceful
assembly under paragraph 1 of this article can also be organized by a
group of citizens, or more than one legal entity.

186. Organizers of assemblies should co-operate with law-enforcement agencies to en-

sure that participants in their assemblies comply with the law and the terms of any
submitted notification. There should be clarity as to who precisely is involved in
the organization of any assembly, and it can be assumed that the official organizer
is the person or persons in whose name prior notification is submitted. This need
not be a legal entity and could, for example, be a committee of individuals or an
informal organization (see also paras. 53 and 105-106).257

Ensuring the peaceful nature of an assembly principles of good practice

187. Pre-event planning with law-enforcement officials: Where possible, it is good

practice for the organizer(s) to agree with the law-enforcement officials about what
security and public-safety measures are being put in place prior to the event. Such
discussions can, for example, cover stewarding arrangements (see paras. 191-196)
and the size, positioning and visibility of the police deployment. Discussions might
also focus upon contingency plans for specific locations (such as monuments, trans-
port facilities or hazardous sites) or upon particular concerns of the police or the
organizer(s). For example, the organizer may fear that a heavy police presence in
a particular location would be perceived by participants as unnecessarily confron-
tational, and might thus request that the police maintain a low visibility.
 Article 30, Slovenias Act on Public Assembly (2004)
Police assistance
When as regards the nature of the gathering or event or as regards
the circumstances in which the gathering or event is held there
exists a possibility that police measures will be necessary, the police,
in agreement with the organizer, shall determine the number of police
officers necessary for assisting in the maintenance of the public order
at the gathering or event. In the event of such, the ranking police
officer shall come to an agreement with the leader on the method of co-
operation.
In the instances specified in the previous paragraph, the organizer
of the gathering or event is obliged also to co-operate with the police
regarding the planning of measures for the maintenance of order at the
gathering or event.

188. An example of legislation from outside the OSCE region, in South Africa, provides
a useful model of good practice, in that it specifically requires a signed contract
detailing the duties and responsibilities of both the police and the demonstrators.

South Africas Regulation of Gatherings Act, No 205 (1993)

The Act states that the peaceful exercise of the right to assemble is
the joint responsibility of the convenor (organiser) of the event, an
authorised member of the police and a responsible officer of the local
authority. Together, these three parties form a safety triangle with
joint responsibility for ensuring order and safety at public events. The
success of the safety triangle is based upon collective planning and co-
ordination between the three parties and a willingness to negotiate and
compromise where disputes arise.258

189. Risk Assessment: Organizers in co-operation with relevant law-enforcement and

other agencies (such as fire and ambulance services) should consider what risks
are presented by their assembly and how they would deal with them should they
materialize. The imposition by law of mandatory risk assessments for all open-air
public assemblies would, however, create an unnecessarily bureaucratic and com-
plicated regulatory regime that would unjustifiably deter groups and individuals
from enjoying their freedom of peaceful assembly.
92

190. Responsibility to obey the lawful directions of law-enforcement officials: The law
on assemblies might legitimately place organizers (as well as participants) under a
duty to obey the lawful orders of law-enforcement officials. Refusal to do so may
entail liability (see paras. 197-198).

Stewarding assemblies

191. Stewards and marshals (the terms are often used interchangeably) are individuals
who assist the organizers of an assembly in managing the event.259 Laws governing
freedom of assembly may provide for the possibility of organizers being assisted by
volunteer stewards. For example, while the police may have overall responsibility
for public order, organizers of assemblies are encouraged to deploy stewards dur-
ing the course of a large or controversial assembly. Stewards are persons, working
in co-operation with the assembly organizers, with a responsibility to facilitate the
event and help ensure compliance with any lawfully imposed restrictions.

192. Stewards do not have the powers of law-enforcement officials and cannot use
force, but should rather aim to obtain the co-operation of assembly participants
by means of persuasion. Their presence can provide reassurance to the public and
help set the mood of an event. The primary role of stewards is to orient the pub-
lic and provide it with explanations and information to identify potential risks and
hazards before and during an assembly. In cases of public disorder, the stewards
(and organizers) should have the responsibility to promptly inform the relevant law-
enforcement officials. Law-enforcement agencies should work in partnership with
event stewards, and each must have a clear understanding of their respective roles.

193. Training, briefing and debriefing: Stewards should receive appropriate training
and a thorough briefing before the assembly takes place (in particular, stewards
should be familiar with the geography of the area in which the assembly is being
held), and it is the responsibility of the organizers to co-ordinate the stewarding
operation. For larger events, a clear hierarchy of decision-making should be estab-
lished and stewards must be able to communicate with one another and with the
organizers at all times during an assembly. As with law-enforcement officials (see
para. 170), it is important that stewards together with the event organizers hold
a thorough post-event debriefing and evaluation after any non-routine assembly.

194. Identification: It is desirable that stewards be clearly identifiable (e.g., through the
wearing of special bibs, jackets, badges or armbands).

195. Requirement to steward certain assemblies: Under some circumstances, it may

be legitimate to impose on organizers the condition that they arrange a certain
 93

level of stewarding for their gathering. However, such a condition should only be
imposed as the result of a specific assessment and never by default. Otherwise,
it would likely violate the proportionality principle.260 Any requirement to provide
stewarding in no way detracts from the positive obligation of the state to provide
adequately resourced policing arrangements. Stewards are not a substitute for the
adequate presence of law-enforcement personnel and law-enforcement agencies
must still bear overall responsibility for public order. Nonetheless, efficient stew-
arding can help reduce the need for a heavy police or military presence at public
assemblies.

196. In some jurisdictions, it is commonplace for professional stewards or private securi-

ty firms to be contracted and paid to provide stewarding for assemblies. However,
there should never be a legal obligation upon organizers to pay for stewarding ar-
rangements. To impose such a cost burden would seriously erode the essential
essence of freedom of assembly and undermine the core responsibility of the state
to provide adequate policing.

Liability

197. Organizers and stewards have a responsibility to make reasonable efforts to com-
ply with legal requirements and to ensure that their assemblies are peaceful, but
they should not be held liable for failure to perform their responsibilities if they
made reasonable efforts to do so. The organizers should not be liable for the ac-
tions of individual participants or of stewards not acting in accordance with the
terms of their briefing.261 Instead, individual liability should arise for any steward
or participant if they commit an offence or fail to carry out the lawful directions of
law-enforcement officials.

198. The organizers may wish to take out public-liability insurance for their event. In-
surance, however, should not be made a condition of freedom of assembly, as any
such requirement would have a disproportionate and inhibiting effect on the en-
joyment of the freedom of assembly. Moreover, if an assembly degenerates into
serious public disorder it is the responsibility of the state not the organizers or
event stewards to limit the damage caused. In no circumstances should the or-
ganizers of a lawful and peaceful assembly be held liable for disruption caused to
others.
8. Monitoring Freedom of Peaceful Assembly
199. The right to observe public assemblies is part of the more general right to receive
information (a corollary of the right to freedom of expression).262 In this regard,
the safeguards guaranteed to the media are particularly important. 263 However,
freedom to monitor public assemblies should not only be guaranteed to all media
professionals264 but also to others in civil society, such as human rights activists,
who might be regarded as performing the role of social watchdogs and whose aim
is to contribute to informed public debate.265

200. The monitoring of public assemblies provides a vital source of independent infor-
mation on the activities of both participants and law-enforcement officials that may
be used to inform public debate and serve as the basis for dialogue between state
and local authorities, law-enforcement officials and civil society.

Independent monitors

201. For the purposes of these Guidelines, monitors are defined as non-participant
third-party individuals or groups whose primary aim is to observe and record the
actions and activities taking place at public assemblies. Independent monitoring
may be carried out by local NGOs, human rights defenders,266 domestic ombuds-
man offices or national human rights institutions; or by international human rights
organizations (such as Human Rights Watch or Amnesty International) or intergov-
ernmental networks (such as the Council of Europe, the OSCE or the UN Office of
the High Commissioner for Human Rights).267 Such individuals and groups should,
therefore, be permitted to operate freely in the context of monitoring freedom of
assembly.

202. Monitoring public assemblies can be a difficult task, and the precise role of moni-
tors will depend on why, and by whom, they have been deployed.268 Monitors may,
for example, be tasked with focusing on particular aspects of an assembly, such as:
The policing of an assembly (to consider whether the state is fulfilling its pos-
itive obligations under human rights law);
Whether parties adhere to a prior agreement about how an assembly is to be
conducted;
Whether any additional restrictions are imposed on an assembly during the
course of the event;
Any instances of violence or use of force, by participants or by law-enforce-
ment personnel;
The interaction between participants in an assembly and an opposing assem-
bly; and
 95

The conduct of participants in a moving assembly that passes a sensitive lo-

cation.

203. Monitors will usually write up the findings of their observations in a report, and
this may be used to highlight issues of concern to the state authorities. The report
can thus serve as the basis for dialogue and engagement on such matters as the
effectiveness of the current law and the extent to which the state is respecting its
positive obligations to protect freedom of peaceful assembly. Monitoring reports
may also be used to engage with the relevant law-enforcement agencies or with the
municipal authorities and might highlight areas where further training, resources
or equipment may be needed.

204. Independent monitoring reports may also be a useful resource for informing inter-
national bodies, such as the Council of Europe, the OSCE and the United Nations,
of the level of respect and protection for human rights in a particular country (see
Appendix A, Enforcement of international human rights standards).

205. ODIHR has developed a training programme for monitoring freedom of assembly
that has been used to support the work of human rights defenders in a number of
countries in Europe and Central Asia. ODIHR has also developed a handbook for
monitoring freedom of assembly that further elaborates on the theory and prac-
tice of independent monitoring.269 The following section, which is drawn from the
training pack, highlights some of the ethical issues for monitors.

Principles and Standards in Monitoring

Monitoring is an ethically based activity that aims to increase protection
of, and respect for human rights. Monitors have to work to high standards
to ensure that their observations and reports are respected and can stand
scrutiny. The following principles have been drawn from the experiences of
monitors working in a diverse range of contexts and environments
1. Monitoring is a tool to defend and protect human rights and monitors
should respect the human rights of all parties. Monitors should adhere
to the principle of do no harm.
2. Monitors must show respect for the law. They should obey the lawful in-
structions from the police and emergency services. Monitors should also
bear in mind that the witnessing of illegal activities (by the police, demon-
strators or others) might require them to give evidence at a later date.
96

3. M  onitors must maintain their independence throughout the process.

Monitors should ensure their independence is not compromised by their
location, dress or demeanour. They should not actively participate in a
demonstration / picket / protest. Monitors may introduce themselves to
participants but should not voice opinions on events and activities
4 . Monitors should remain neutral. Monitors are citizens, with their own
rights and responsibilities, however, when monitoring it is important to
maintain a neutral position. Monitors should not advise parties on the
ground or voice opinions about the actions of any party.
5 . The work of monitors should be visible. They should have a form of
identification available at all times. Monitoring is a transparent and
open practice and it is hoped that the visible presence of monitors will
have a positive impact on respect for human rights and deter acts of
aggression and violence.
6 . Monitors will generally work as part of a team. They should have an
agreed plan of action, a chain of command, and an agreed means of
communication with other team members. They should have an agreed
public location (caf, train station, etc.) for rendezvous after the event.
7 . Monitors should be mindful of their own safety. Monitors should ideally
work in pairs (although this is not always necessary or practical) and at
times it may be necessary for monitors to withdraw from a location or
from public space entirely if they have concerns for their personal safety.
8. Despite the provisos specified above, monitors should also remember
their social responsibilities as citizens and there may be times when
an individual may consider it necessary to intervene in a particular
situation. The monitoring team should discuss such eventualities as part
of its general preparation.
9 . Monitors should never act in a way that will discredit the larger
monitoring team. Monitors should never consume alcohol or other
illegal drugs or substances before or during events.
10 . Monitors should not offer any formal opinions to the media or other
agencies during the assembly. Any comments should be limited to
identification of their role as independent human rights monitors.
11 . The monitoring team should verbally debrief as soon as possible at
the end of an event. Written reports should ideally be prepared within
twenty-four hours of the end of an event from notes made at the time.
 97

12 . Monitors reports should be accurate and impartial. Monitors should

ensure that their reports are based on what they have seen and heard.
They must resist any efforts to influence their report. They should not
report hearsay.

Media

206. The media perform a pre-eminent role in a state governed by the rule of law. The
role of the media as public watchdogs is to impart information and ideas on mat-
ters of public interest information that the public also has a right to receive. 270

207. Media professionals, therefore, have an important role to play in providing inde-
pendent coverage of public assemblies. The OSCE Representative on Freedom of
the Media has noted that uninhibited reporting on demonstrations is as much a
part of the right to free assembly as the demonstrations are themselves the exer-
cise of the right to free speech.271

208. Furthermore, [a]ssemblies, parades and gatherings are often the only means that
those without access to the media may have to bring their grievances to the atten-
tion of the public.272 Media reports and footage thus provide an important element
of public accountability, both for organizers of events and law-enforcement offi-
cials. As such, the media must be given full access by the authorities to all forms of
public assembly and to the policing operations mounted to facilitate them.

Article 17, Moldovas Law on Public Assemblies (2008): Observance of

Assemblies
(1) Any person can make video or audio recording of the assembly.
(2) Access for the press is ensured by the organizers of the assembly
and by the public authorities.
(3) Seizure of technical equipment, as well as of video and audio
recordings of assemblies, is only possible in accordance with the law.

209. There have, however, been numerous instances where journalists have been restrict-
ed from reporting at public assemblies and occasions on which journalists have been
detained and/or had their equipment damaged.273 As a result, the OSCE Represent-
ative on Freedom of the Media issued a special report on handling the media during
political demonstrations; the following excerpt highlights its recommendations.274
98

OSCE Representative on Freedom of the Media, Special Report:

Handling of the media during political demonstrations, Observations
and Recommendations (June 2007)
There have been a number of instances recently where journalists have
received particularly harsh treatment at the hands of law-enforcers
while covering public demonstrations. This has highlighted the need
to clarify the modus operandi of both law enforcement agencies and
journalists at all public events, in order that the media is able to provide
coverage without hindrance.
Both law-enforcers and journalists have special responsibilities at a
public demonstration. Law-enforcers are responsible for ensuring that
citizens can exercise their right to peaceful assembly, for protecting
the rights of journalists to cover the event regardless of its legal status,
and for curbing the spread of violence by peaceful means. Journalists
carry the responsibility to be clearly identified as such, to report without
taking measures to inflame the situation, and should not become
involved in the demonstration itself.
Law-enforcers have a constitutional responsibility not to prevent or
obstruct the work of journalists during public demonstrations, and
journalists have a right to expect fair and restrained treatment by the
police. This flows from the role of law-enforcers as the guarantor of
public order, including the right to free flow of information, and their
responsibility for ensuring the right to freedom of assembly.

Recommendations
1. Law enforcement officials have a constitutional responsibility
not to prevent or obstruct the work of journalists during public
demonstrations. Journalists have a right to expect fair and restrained
treatment by the police.
2. Senior officials responsible for police conduct have a duty
to ensure that officers are adequately trained about the role
and function of journalists and particularly their role during a
demonstration. In the event of an over-reaction from the police, the
issue of police behaviour vis--vis journalists should be dealt with
separately, regardless of whether the demonstration was sanctioned
or not. A swift and adequate response from senior police officials is
necessary to ensure that such an over-reaction is not repeated in the
future and should send a strong signal that such behaviour will not
be tolerated.
 99

3. There is no need for special accreditation to cover demonstrations

except under circumstances where resources, such as time and
space at certain events, are limited. Journalists who decide to cover
unsanctioned demonstrations should be afforded the same respect
and protection by the police as those afforded to them during other
public events.
4. Wilful attempts to confiscate, damage or break journalists
equipment in an attempt to silence reporting is a criminal offence
and those responsible should be held accountable under the law.
Confiscation by the authorities of printed material, footage, sound
clips or other reportage is an act of direct censorship and as such is
a practice prohibited by international standards. The role, function,
responsibilities and rights of the media should be integral to the
training curriculum for law-enforcers whose duties include crowd
management.
5. Journalists should identify themselves clearly as such, should
refrain from becoming involved in the action of the demonstration
and should report objectively on the unfolding events, particularly
during a live broadcast or webcast. Journalists unions should agree
on an acceptable method of identification with law enforcement
agencies and take the necessary steps to communicate this
requirement to media workers. Journalists should take adequate
steps to inform and educate themselves about police measures that
will be taken in case of a riot.
6. Both law enforcement agencies and media workers have the
responsibility to act according to a code of conduct, which should be
reinforced by police chiefs and chief editors in training. Police chiefs
can assist by ensuring that staff officers are informed of the role and
function of journalists. They should also take direct action when
officers overstep the boundaries of these duties. Media workers can
assist by remaining outside the action of the demonstration and clearly
identifying themselves as journalists.

210. In addition, the Guidelines of the Committee of Ministers of the Council of Europe
on Protecting Freedom of Expression and Information in Times of Crisis under-
line that not only is media coverage crucial in times of crisis by providing accurate,
timely and comprehensive information, but that media professionals can make
a positive contribution to the prevention or resolution of certain crisis situations
by adhering to the highest professional standards and by fostering a culture of
100

tolerance and understanding between different groups in society. The follow-

ing extracts are particularly relevant in relation to media coverage of freedom of
peaceful assembly:

Extracts from: Guidelines of the Committee of Ministers of the

Council of Europe on Protecting Freedom of Expression and
Information in Times of Crisis
Member States should assure to the maximum extent the safety
of media professionals both national and foreign. The need to
guarantee the safety, however, should not be used by member States as
a pretext to limit unnecessarily the rights of media professionals such as
their freedom of movement and access to information. (paragraph 2);

Military and civilian authorities in charge of managing crisis situations

should provide regular information to all media professionals covering
the events through briefings, press conferences, press tours or other
appropriate means (paragraph 11);

National governments, media organisations, national or international

governmental and non-governmental organisations should strive to
ensure the protection of freedom of expression and information in times
of crisis through dialogue and co-operation (paragraph 27);

Non-governmental organisations and in particular specialised

watchdog organisations are invited to contribute to the safeguarding
of freedom of expression and information in times of crisis in various
ways, such as:
Maintaining help lines for consultation and for reporting
harassment of journalists and other alleged violations of the right
to freedom of expression and information;
Offering support, including in appropriate cases free legal
assistance, to media professionals facing, as a result of their work,
lawsuits or problems with public authorities;
Co-operating with the Council of Europe and other relevant
organisations to facilitate exchange of information and to
effectively monitor possible violations. (paragraph 30).
 101

Annex A Enforcement of international human rights

standards

Where states fail to fulfil their human rights obligations, the role of human rights de-
fenders, civil society organizations (CSOs) and NGOs (both domestic and international)
becomes especially important. Such individuals and groups together with national
institutions, such as ombudspersons or national human rights institutions (NHRIs)
perform a vital task in seeking to ensure that rights are enforced in practice and that
something is learned as a result of any failures. While such organizations will inevitably
have different priorities, skills and experience, organizational capacities and resources,
their respective strengths can be harnessed so as to make the protection of the right to
freedom of assembly practical and effective.

There are a variety of options that may be available in any given context. This annex
provides an overview of only the main regional and international mechanisms through
which a failure to adhere to these Guidelines might be exposed and/or challenged. Inter-
state procedures (such as those available under the ICCPR and ECHR) are not examined.

As emphasized in chapter 8, Monitoring Freedom of Peaceful Assembly, wherever

possible, the starting point should be dialogue among government, local authorities, law-
enforcement officials and civil society. Reports issued by independent monitors, human
rights defenders, NGOs and media professionals can, certainly, provide an impetus for
such discussions. Nonetheless, complaints of human rights violations should not be based
exclusively on reports in mass media, and should be corroborated wherever possible. See:
Guidelines on International Human Rights Fact-Finding Visits and Reports (The
Lund-London Guidelines), Raoul Wallenberg Institute of Human Rights and
Humanitarian Law, Lund University, June 2009, at: <http://www.factfinding-
guidelines.org/guidelines.html>; and
Julie Mertus, Considerations for Human Rights Fact Finding by NGOs, at:
<http://academic3.american.edu/~mertus/HR%20fact-finding.htm>.

Legislative Support: The OSCE / ODIHR and Venice Commission

ODIHRs primary task in the field of legislative assistance is to respond to requests

from participating States and to ensure the consistency of such responses. Assist-
ance generally involves a review of draft legislation in areas covered by the human
dimension to ensure compliance with international standards, particularly OSCE
commitments. ODIHR also provides states with good practices that have been culled
from years of experience of working with a number of countries. Such practices and
102

sample legislation may serve as a source of inspiration for lawmakers in other parts
of the OSCE region.

With regard to legislative assistance in the area of freedom of assembly, ODIHR, through
its Panel of Experts on Freedom of Assembly, provides advice to OSCE participating
States on draft legislation pertaining to this field. The advice is solicited through an
official request from the authorities of the participating State in question or the respec-
tive OSCE field operation. In exceptional cases, comments are released on legislation
in force, but only when there is a prospect for reform and an attested political will to
engage in a reform process. The comments seek to help the OSCE participating States
meet their international obligations (whether they are embodied in legally binding stand-
ards or politically binding commitments).

Moreover, the assessment of compliance with standards takes into account various pa-
rameters, including those that characterize the legal system, the legal culture and the
institutional setup of a particular country. This requires the collection of information
on the issues addressed or affected by the legal provisions under consideration. See:
ODIHR website, Legislative support, at:
<http://www.osce.org/odihr/13431.html>.

The Venice Commissions primary task is to give impartial legal advice to individual
countries that are drafting or revising constitutions or laws on legislation that is impor-
tant for the democratic functioning of institutions. Generally, a request for an opinion
is made by the state itself. The Committee of Ministers, the Parliamentary Assembly,
the Congress of Local and Regional Authorities of the Council Europe, and the Sec-
retary General, or any international organization or body participating in the Venice
Commissions work, may also request an opinion. The Commissions working meth-
od when providing opinions is to appoint a working group of rapporteurs (primarily
from among its own members), which advises national authorities in the preparation
of the relevant law. After discussions with the national authorities and stakeholders in
the country, the working group prepares a draft opinion on whether the legislative text
meets the democratic standards in its field and on how to improve it on the basis of com-
mon experience. The draft opinion is discussed and adopted by the Venice Commission
during a plenary session, usually in the presence of representatives from the country
in question. After the opinions adoption it becomes public and is forwarded to the re-
questing body. Although its opinions are generally reflected in the adopted legislation,
the Venice Commission does not impose its solutions but, instead, adopts a non-direc-
tive approach based on dialogue. For this reason, as a rule, the working group, visits the
country concerned and meets with the different political actors involved in the issue in
order to ensure the most objective view of the situation possible. See:
 103

Council of Europe website, Venice Commission, at:

<http://www.venice.coe.int/site/main/Presentation_E.asp>.

UN Treaty-Based Mechanisms

The Human Rights Committee (ICCPR)

States Parties to the ICCPR must initially report one year after acceding to the Covenant,
and thereafter whenever the Committee requests (usually every four years). The Com-
mittee examines each report and makes recommendations to the State Party by way of
concluding observations. Where the state in question is also a party to the first Option-
al Protocol to the ICCPR, an individual communication (petition) may be lodged with the
UN Human Rights Committee by individuals (not organizations or associations)275 who
claim a violation by the State Oarty of Article 21, ICCPR (or other Covenant right). See:
How to Complain to the UN Human Rights Treaty System, at:
<http://www.bayefsky.com/unts/index.html>.
Office of the UN High Commissioner for Human Rights website, Human Rights
Bodies, at: <http://www.ohchr.org/en/hrbodies/Pages/HumanRights-
Bodies.aspx>, for information on the other UN Treaty based bodies, including
the Committee on the Elimination of Racial Discrimination (CERD) and the Com-
mittee against Torture(CAT); and
Office of the UN High Commissioner for Human Rights website, Model
questionnaires for communications/complaints, at:
<http://www2.ohchr.org/english/bodies/question.htm>.

UN Charter-Based Mechanisms

Universal Periodic Review

The UN Human Rights Council is mandated to undertake a review of the human rights
record of each UN Member State once every four years. This process called Univer-
sal Periodic Review (UPR) is designed to facilitate interactive discussion between the
state under review and other UN Member States. Reviews are based upon state sub-
missions (and states are encouraged to engage in a broad consultation process at the
national level with all relevant stakeholders in preparing their submissions), reports
by independent human rights experts and groups, and information from other stake-
holders (including NGOs and national human rights institutions). NGOs can attend the
UPR Working Group sessions and can make comments at meetings of the Human Rights
Council when the outcome report of the review is considered. Outcome reports adopt-
ed by the Working Group provide the basis for subsequent reviews, and the Council will
decide on appropriate measures if a Member State persists in failing to co-operate. See:
104

Office of the UN High Commissioner for Human Rights website, Informa-

tion and Guidelines for Relevant Stakeholders on the Universal Periodic Review
Mechanism, at: <http://www.ohchr.org/EN/HRBodies/UPR/Documents/
TechnicalGuideEN.pdf>.

The Human Rights Council Complaints Procedure

This confidential complaints procedure (the successor to the 1503 Procedure) is de-
signed to address consistent patterns of gross and reliably attested violations of human
rights and fundamental freedoms. Communications are examined by two working
groups the Working Group on Communications and the Working Group on Situa-
tions. See:
Office of the UN High Commissioner for Human Rights website, Human Rights
Council Complaints Procedure, at: <http://www2.ohchr.org/english/bod-
ies/chr/complaints.htm>; and
Office of the UN High Commissioner for Human Rights website, Commu-
nications, at: <http://www2.ohchr.org/english/bodies/chr/special/
communications.htm>.

Special Procedures of the Human Rights Council

See:
Working Group on Arbitrary Detention, Office of the
UN High Commissioner for Human Rights website, at:
<http://www2.ohchr.org/english/issues/detention/index.htm>;
Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression, Office of the UN High Commissioner for Human Rights
website, at: <http://www2.ohchr.org/english/issues/opinion/index.htm>;
Special Rapporteur on freedom of religion or belief, Of-
fice of the UN High Commissioner for Human Rights website, at:
<http://www2.ohchr.org/english/issues/religion/index.htm>; and
Special Rapporteur on the situation on human rights defenders, (complaints
procedure),276 Office of the UN High Commissioner for Human Rights website,
at: <http://www2.ohchr.org/english/issues/defenders/index.htm>.

The European Court of Human Rights

For those OSCE participating States that are High Contracting Parties to the ECHR,
Article 1 of the ECHR requires states to secure to everyone within their jurisdiction the
rights and freedoms defined in the Convention (irrespective of nationality or place of
residence see paragraph 55 of the Explanatory Notes). Where the state fails to fulfil
 105

its Convention obligations, Article 13 of the ECHR which guarantees the right to an ef-
fective remedy entails a personal right to the exercise by the state of its supervisory
powers.277 In this regard, the competent national authority must be able to deal with the
substance of the relevant Convention complaint and to grant appropriate relief.278 There
is no obligation to have recourse to remedies which are inadequate or ineffective,279
and the burden is upon the government to demonstrate that any unused remedies were
accessible, were capable of providing redress in respect of the applicants complaints
and offered reasonable prospects of success.280 This underscores the imperative of a
legal culture committed to the rule of law and of an independent judiciary.

Given that the timing of an assembly will often be critical to its message, the notion of
an effective remedy also implies the possibility of obtaining an appeal ruling before the
time of the planned event.281 Post-hoc review will normally be regarded as inadequate,
and laws governing the regulation of freedom of peaceful assembly should provide for
an expedited review and appeal process.

Under Article 34 of the ECHR, any person, NGO or group of individuals282 claiming to
be the victim of a violation by a High Contracting Party, may submit an application to
the European Court of Human Rights within 6 months of the final decision taken in the
domestic proceedings (Article 35(1) ECHR). The application must demonstrate prima
facie grounds that there has been a breach of the Convention so as not to be deemed
manifestly ill-founded under Article 35(3).283

An applicant to the European Court of Human Rights should initially appeal any claimed
violation of Convention rights in the relevant national courts, adhering to any formal
requirements and time-limits laid down in domestic law. Applicants must also use any
procedural means that might prevent a breach of the Convention.284 Thus, where any
concerns arising in relation to a notified assembly can reasonably be addressed and/or
accommodated by an organizer of an assembly (without undermining the event or its
message), pre-event liaison can serve to prevent later breaches of the Convention (but
see paragraph 103 of the Explanatory Notes, above, which emphasizes that an organiz-
er of an assembly should not be compelled or coerced into accepting any alternatives
proposed by the authorities). In addition, it will be important for civil society groups to
monitor the implementation of general and specific enforcement measures stipulated
by the Committee of Ministers. See:
European Court of Human Rights website, Application pack: Documentation for
persons wishing to apply to the European Court of Human Rights, at: <http://
www.echr.coe.int/ECHR/EN/Header/Applicants/Apply+to+the+Court/
Application+pack/>.
106

The Inter-American Commission and Inter-American Court on Human Rights

Under Article 44 of the American Convention on Human Rights (adopted in 1969 and
came into force in 1978), any person, group or NGO legally recognized in one or more
of the Member States of the Organization of American States (OAS) can lodge a pe-
tition complaining of a violation of the Convention by a State Party. Petitioners must
exhaust domestic remedies and lodge their petition within 6 months of being notified
of the final domestic judgment. Article 47 of the Convention provides that the petition/
communication must state facts that tend to establish a violation, must not be mani-
festly groundless or obviously out of order, and must not be substantially the same as
one previously studied by the Commission or by another international organization. On
examining such a petition, the Commission can carry out an investigation, if necessary
and advisable. The Commission may also request that states provide any pertinent in-
formation and, if requested, shall hear oral statements or receive written statements
from parties concerned (Article 48 (d) and (e)).

The Commission also has a mandate to promote respect for human rights in the region
and acts as a consultative body to the OAS in this matter (Article 41). This promotional
mandate includes the preparation of such studies or reports as it considers advisable,
and the Commission can request the governments of Member States to supply it with in-
formation on any measures adopted. The Commission also carries out specialized work
in certain thematic areas, including that done by the the Special Rapporteur on Freedom
of Expression, and there is a separate unit on human rights defenders. The Commis-
sion can conduct in loco visits (as it did, for example, to Honduras in August 2009 to
observe the human rights situation in the context of the coup d tat of June 28, 2009).

Only States Parties and the Commission can submit a case to the Court (Article 61). The
Courts contentious jurisdiction must have been recognized by States Parties before a
case can be heard (Article 62(3)). On finding a violation, the Court can rule that the
measure or situation that constituted the breach be remedied and that fair compensation
be paid (Article 63(1)). The judgment of Court is final and not subject to appeal (Article
67) and is binding on States Parties in cases to which they are parties (Article 68(1)). See:
Inter-American Commission on Human Rights website, Petitions, at:
<https://www.cidh.oas.org/cidh_apps/instructions.asp?gc_language=E>; and
Inter-American Commission on Human Rights website, Publications (country reports,
annual reports, and resolutions), at: <http://www.cidh.oas.org/publi.eng.htm>.

The Council of Europe, Office of the Commissioner for Human Rights

The Council of Europe Commissioner for Human Rights is a non-judicial institution, and
thus unable to act upon individual complaints. Nonetheless, the Commissioners office
 107

seeks to encourage Council of Europe Member States to adopt reform measures where
human rights violations have been identified. The Commissioner seeks to maintain a
dialogue with Member States and evaluates the on-the-ground human rights situation
through official country missions. The Commissioner also provides advice on the pro-
tection of human rights and may provide opinions on draft laws and specific practices
(either on the request of national bodies or on his/her own initiative). See:
Council of Europe website, Commissioner for Human Rights: Contact us, at:
<http://www.coe.int/t/commissioner/Office/contact_en.asp>; and
Council of Europe website, Commissioner for Human Rights: Human Rights Com-
ment, at: <http://www.coe.int/t/commissioner/Media/HRComment_en.asp>.
108

Annex B Cases cited

European Court of Justice

Eugen Schmidberger, Internationale Transporte und Planzuge v. Republik Oster-
reich (Case C-112/00, ECR I-5659, 2003)
Commission v. France (Case C-265/95, ECR I-6959, 1997)

European Court of Human Rights

Acik v. Turkey (Application no. 31451/03, judgment of 13 January 2009)
Ahmed and Others v. United Kingdom (Application no. 22954/93, judgment of 2
September 1998)
Aldemir (Nurettin) and Others v. Turkey (Applications nos. 32124/02, 32126/02,
32129/02, 32132/02, 32133/02, 32137/02 and 32138/02, judgment of 18 December
2007)
Amann v. Switzerland [GC] (Application no. 27798/95, judgment of 16 February
2000)
Anderson v. United Kingdom (Application no. 33689/96, Commission admissibili-
ty decision of 27 October 1997); (1997) 25 EHRR CD 172
Appleby v. United Kingdom (Application no. 44306/98, judgment of 6 May 2003)
A.R.M. Chappell v. United Kingdom (Application no. 12587/86, admissibility deci-
sion of 14 July 1987); (1987) 53 DR 241
Ashingdane v. the United Kingdom (Application no. 8225/78, judgment of 28 May
1985);(1985) 7 EHRR 528
Ashughyan v. Armenia (Application no. 33268/03, judgment of 17 July 2008)
Association of Citizens Radko & Paunkovski v. the former Yugoslav Republic of
Macedonia (Application no. 74651/01, judgment of 15 January 2009)
Axen v. Germany (Application no. 8273/78, judgment of 8 December 1983); (1983)
ECHR 14
Bczkowski and Others v. Poland (Application no. 1543/06; judgment of 3 May 2007)
Balcik and Others v. Turkey (Application no. 25/02, judgment of 29 November 2007)
Balkani (Zeleni) v. Bulgaria (Application no. 63778/00, judgment of 12 April 2007)
Barankevich v. Russia (Application no. 10519/03, Judgment of 26 July 2007)
Barraco v. France (Application no. 31684/05, judgment of 5 March 2009, in French only)
Bukta v. Hungary (Application 25691/04, judgment of 17 July 2007)
Castells v. Spain (Application no. 11798/85, judgment of 23 April 1992)
Chassagnou and Others v. France [GC] (Application nos. 25088/94, 28331/95,
28443/95, judgment of 29 April 1999)
Cetinkaya v. Turkey (Application 75569/01, judgment of 27 June 2006, in French only)
Christian Democratic Peoples Party v. Moldova (Application no. 28793/02, judg-
ment of 14 February 2006)
 109

Christian Democratic Peoples Party v. Moldova (No.2) (Application no. 25196/04,

judgment of 2 February 2010)
Christians Against Racism and Fascism (CARAF) v. United Kingdom (Application
no. 8440/78, Commission admissibility decision of 16 July 1980)
Christodoulidou v. Turkey (Application no. 16085/90, judgment of 22 September
2009)
Chrysostomos and Papachrysostomou v. Turkey (Applications 15299/89 and
15300/89; admissibility decision of 4 March 1991, Commission decision of 8 July 1993)
Chorherr v. Austria (Application no. 13308/87, judgment of 25 August 1993); (1993)
17 EHRR 358
Cetinkaya v. Turkey (Application no. 75569/01, judgment of 27 June 2006)
ilolu and Others v. Turkey (Application no. 73333/01, judgment of 6 March 2007,
judgment in French only)
iraklar v. Turkey (Application no. 19601/92, judgment of 28 October 1998)
Cisse v. France (Application no. 51346/99, judgment of 9 April 2002)
Cyprus case (1958-59) Yearbook ECHR 174
Demir and Baykara v. Turkey (Application no. 34503/97, judgment of 12 Novem-
ber 2008)
Djavit An v. Turkey (Application no. 20652/92, judgment of 20 February 2003)
Eki and Ocak v. Turkey (Application no. 44920/04, judgment of 23 February 2010)
Enerji Yapi-Yol Sen v. Turkey (Application no. 68959/01, judgment of 21 April 2009)
Ezelin v. France 14 EHRR 362 (Application no. 11800/85, judgment of 26 April 1991)
Foka v. Turkey (Application no. 28940/95, judgment of 24 June 2008)
Freedom and Democracy Party (zdep) v. Turkey [GC] (Application no. 23885/94,
judgment of 8 December 1999)
Friedl v. Austria (Application no. 15225/89, judgment of 31 January 1995)
G v. Federal Republic of Germany (Application no. 13079/87, admissibility decision
of 6 March 1989); (1989) 60 DR 256
Galstyan v. Armenia (Application no. 26986/03, judgment of 15 November 2007)
Garaudy v. France (Application no. 65831/01, admissibility decision of 24 June 2003,
in French, English translation)
Gasparyan v. Armenia (No.1) (Application no. 35944/03, judgment of 13 January 2009)
Gasparyan v. Armenia (No.2) (Application no. 22571/05, judgment of 16 June 2009)
Gillan and Quinton v. UK (Application no. 4158/05, judgment of 12 January 2010)
Glimmerveen and Hagenbeek v. the Netherlands (Application nos.8348/78 and
8406/78, admissibility decision of 11 October 1979)
Gmez v. Spain (Application no. 4143/02, judgment of 16 November 2004)
Giuliani and Gaggio v. Italy (Application no. 23458/02, judgment of 25 August 2009)
Glec v. Turkey (Application no. 21593/93, judgment of 27 July 1998)
Gneri and Others v. Turkey (Application nos. 42853/98, 43609/98, 44291/98, judg-
ment of 12 July 2005, in French only)
110

Guenat v. Switzerland (Application no. 24722/94, admissibility decision of 10 April 1995)

Gustafsson v. Sweden [GC] (Application no. 15573/89, judgment of 24 April 1996;
dismissal of revision request 30 July 1998)
Guzzardi v. Italy (Application no. 7367/76, judgment of 6 November 1980); (1980)
3 EHRR 333
Hajibeyli v. Azerbaijan (Application no. 16528/05, judgment of 10 July 2008)
Handyside v. United Kingdom (Application no. 5493/72, judgment of 7 Decem-
ber 1976)
Haas v. Netherlands (Application no. 36983/97, judgment of 13 January 2004);
(2004) ECHR 13
Hashman and Harrup v. United Kingdom [GC] (Application no. 25594/94, judg-
ment of 25 November 1999)
Herbecq and Another v. Belgium (Applications nos. 32200/96 and 32201/96, ad-
missibility decision of 14 January 1998); (1998) DR 92-A
Hyde Park and Others v. Moldova (No.1) (Application no. 33482/06, judgment of
31 March 2009)
Hyde Park and Others v. Moldova (No.2) (Application no. 45094/06, judgment of
31 March 2009)
Hyde Park and Others v. Moldova (No.3) (Application no. 45095/06, judgment of
31 March 2009)
Incal v. Turkey (Application no. 22678/93, judgment of 9 June 1998)
Ireland v. the United Kingdom (Application no. 5310/71, judgment of 18 January 1978)
Jordan v. United Kingdom (Application no. 24746/94, judgment of 4 May 2001)
Kaya v. Turkey (Application no. 22729/93, judgment of 19 February 1998)
Kandzhov v. Bulgaria (Application no. 68294/01, judgment of 6 November 2008)
Kelly and Others v. United Kingdom (Application no. 30054/96, judgment of 4
May 2001)
Kimlya and Others v. Russia (Applications nos. 76836/01 and 32782/03, judgment
of 1 October 2009)
Kuolelis, Bartosevicius and Burokevicius v. Lithuania (Applications nos. 74357/01,
26764/02 and 27434/02, judgment of 19 February 2008)
Kuznetsov v Russia (Application no. 10877/04, judgment of 23 October 2008)
Lawless v. Ireland (Application no. 332/57, judgment of 1July 1961); (1961) 1 EHRR 15
Leander v. Sweden (Application no. 9248/81, judgment of 26 March 1987; Series
A no. 116
Lehideux and Isorni v. France [GC] (Application no. 24662/94, judgment of 23
September 1998)
Lucas v. UK (Application no. 39013/02, admissibility decision of 18 March 2003)
Makhmudov v. Russia (Application no. 35082/04, judgment of 26 July 2007)
Mammadov (Jalaloglu) v. Azerbaijan (Application no. 34445/04, judgment of 11
January 2007)
 111

McCann and Others v. United Kingdom [GC] (Application no. 18984/91, judgment
of 27 September 1995); (1995) ECHR 31
McKerr v. United Kingdom (Application no. 28883/95, judgment of 2001)
McShane v. United Kingdom (Application no. 43290/98, judgment of 28 May 2002)
Mkrtchyan v. Armenia (Application no. 6562/03, judgment of 11 January 2007)
Molnr v. Hungary (Application no. 10346/05, judgment of 7 October 2008)
Mller and Others v. Switzerland (Application no. 10737/84, judgment of 24 May 1988)
Muradova v. Azerbaijan (Application no. 22684/05, judgment of 2 April 2009)
Nachova and Others v. Bulgaria [GC] (Application nos. 43577/98 and 43579/98,
judgment of 6 July 2005)
Nicol and Selvanayagam v. United Kingdom (Application no. 32213/96, admissi-
bility decision, 11 January 2001)
Norris v. Ireland (Application no. 10581/83, judgment of 26 October 1988)
Observer and Guardian v. United Kingdom (Application no. 13585/88, judgment
of 26 November 1991)
llinger v. Austria (Application no. 76900/01, judgment of 29 June 2006)
Olymbiou v. Turkey (Application no. 16091/90, judgment of 27 October 2009)
Opuz v. Turkey (Application no. 33401/02, judgment of 9 June 2009)
Otto-Preminger-Institut v. Austria (Application no. 13470/87, judgment of 20 Sep-
tember 1994)
Osman v. United Kingdom (Application no. 23452/94, judgment of 28 October 1998)
Oya Ataman v. Turkey (Application no. 74552/01, judgment of 5 December 2006)
Papi v. Turkey (Application no. 16094/90, judgment of 22 September 2009)
Patyi v. Hungary (Application no. 5529/05, judgment of 7 October 2008)
Perry v. the United Kingdom (Application no. 63737/00, judgment of 17 July 2003)
P.G and J.H. v. United Kingdom (Application no. 44787/98, judgment of 25 Sep-
tember 2001)
Plattform rzte fr das Leben v. Austria (Application no. 10126/82, judgment of
21 June 1988)
Protopapa v. Turkey (Application no. 16084/90, judgment of 24 February 2009)
Rai and Evans v. United Kingdom (Applications nos. 26258/07 and 26255/07, ad-
missibility decision of 17 November 2009)
Rai, Almond and Negotiate Now v. United Kingdom (Application no. 25522/94,
admissibility decision of 6 April 1995); (1995) 81 DR 146
Rassemblement Jurassien & Unit Jurassienne v. Switzerland (Application no.
8191/78, admissibility decision of 10 October 1979); (1979) 17 DR 93
Refah Partisi (The Welfare Party)and Others v. Turkey [GC] (Application nos.
41340/98, 41342/98 and 41343/98, judgment of 13 February 2003)
Rekvnyi v. Hungary [GC] (Application no. 25390/94, judgment of 20 May1999)
Rosca, Secareanu and Others v. Moldova (Applications nos. 25230/02, 25203/02,
27642/02, 25234/02 and 25235/02, judgment of 27 March 2008)
112

Rotaru v. Romania [GC] (Application no. 28341/95, judgment of 4 May 2000)

S v. Austria (Application 13812/88, admissibility decision of 3 December 1990)
S. and Marper v. United Kingdom (Applications nos. 30562/04 and 30566/04, judg-
ment of 4 December 2008)
Samt Karabulut v. Turkey (Application no. 16999/04, judgment of 27 January 2009)
Saya and Others v. Turkey (Application no. 4327/02, judgment of 7 October 2008)
Sdruen Jihoesk Matky c. la Rpublique tchque (Application no. 19101/03, judg-
ment of 10 July 2006, in French only)
Sejdi and Finci v. Bosnia and Herzegovina (Applications nos. 27996/06 and
34836/06, judgment of 22 December 2009)
Shanaghan v. United Kingdom (Application no. 37715/97, judgment of 4 May 2001)
Simsek and Others v. Turkey (Applications nos. 35072/97 and 37194/97, judgment
of 26 July 2005)
Solomou and Others v. Turkey (Application no. 36832/97, judgment of 24 June 2008)
Soulas v. France (Application no. 15948/03, judgment of 7 October 2008, in French only)
Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (Applica-
tions nos. 29221/95 and 29225/95, admissibility decision of 29 June 1998; judgment
of 2 October 2001)
Steel and Others v. United Kingdom (Application no. 24838/94, judgment of 23
September 1998)
Steel and Morris v. United Kingdom (Application no. 68416/01, judgment of 15 Feb-
ruary 2005)
Strati v. Turkey (Application no. 16082/90, judgment of 22 September 2009)
Trsasg a Szabadsgjogokrt v. Hungary (Application no. 37374/05, judgment
of 14 April 2009)
Thlimmenos v. Greece (Application no. 34369/97, judgment of 6 April 2000); (2000)
31 EHRR 15
Thorgeir Thorgeirson v. Iceland (Application no. 13778/88, judgment of 25 June 1992)
Tsonev v. Bulgaria (Application no. 45963/99, judgment of 13 April 2006)
United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (Application no.
44079/98, judgment of 20 October 2005)
United Macedonian Organisation Ilinden and Others v. Bulgaria (Application no.
59491/00, judgment of 19 January 2006)
Vajnai v. Hungary (Application no. 33629/06, judgment of 8 July 2008)
Vrahimi v. Turkey (Application no. 16078/90, judgment of 22 September 2009)
Women and Waves v. Portugal (Application no. 31276/05, judgment of 3 Febru-
ary 2009)
X v. UK (Application no 5877/72, admissibility decision of 12 October 1973)
X and Y v. The Netherlands (Application no. 8978/80, judgment of 26 March 1985)
Young, James and Webster v. the United Kingdom (Application no. 7601/76;
7806/77, judgment of 13 August 1981)
 113

Zdanoka v. Latvia [GC] (Application no. 58278/00, judgment of 16 March 2006)

Ziliberberg v. Moldova (Application no. 61821/00, admissibility decision of 4 May
2004; judgment of 1 February 2005)

Communicated Cases before the European Court of Human Rights

Alekseyev (Nikolay Aleksandrovich) v. Russia (Applications nos. 4916/07, 25924/08
and 14599/09, lodged on 29 January 2007, 14 February 2008 and 10 March 2009)
Dinc et Saygili v. Turkey (Application no. 17923/09, lodged on 9 March 2009, in
French only)
Hmelevschi (Boris) and Moscalev (Vladimir) v. Moldova (Applications nos.
43546/05 and 844/06, lodged on 1 and 8 December 2005)
Juma Mosque Congregation and Others v. Azerbaijan (Application no. 15405/04,
lodged on 28 April 2004).
Mtsaru v. Moldova (Application no. 44743/08, lodged on 22 August 2008)
Mtsaru v. Moldova (Application no. 20253/09, lodged on 20 April 2009)
Mocanu (Sergiu) v. Moldova (Application no. 24163/09, lodged on 11 May 2009)
Popa (Radu) v. Moldova (Application no. 29837/09, lodged on 8 June 2009)
Primov and Others v. Russia (Application no. 17391/06 lodged on 30 May 2006)
Ryabinina (Yelena Zusyevna) v. Russia (Application no. 50271/06, lodged on 20
November 2006)
Stati and Marinescu v. Moldova (Application no.19828/09, lodged on 16 April 2009)
Sultanov (Vidadi) v. Azerbaijan (Application no. 21672/05, lodged on 2 June 2005)
Zengin (Ltfiye) and Others v. Turkey (Application no. 36443/06, lodged on 14 Au-
gust 2006)

UN Human Rights Committee

Kivenmaa v. Finland (1994) CCPR/C/50/D/412/1990
Nicholas Toonen v. Australia, UN Human Rights Committee, No. 488/1992, UN
Doc. CCPR/C/50/D/488/1992 (04/04/94)
Patrick Coleman v. Australia (2006) CCPR/C/87/D/1157/2003 (Jurisprudence) Com-
munication No. 1157/2003: Australia. 10/08/2006.
Ernst Zndel v. Canada, Communication No. 953/2000, UN Doc. CCPR/
C/78/D/953/2000 (2003)
Robert Faurisson v. France, Communication No. 550/1993, UN Doc. CCPR/
C/58/D/550/1993 (1996)
Zvozskov v. Belarus (1039/2001) UN Human Rights Committee, 10 November 2006.
22 B.H.R.C. 114
Patrick Coleman v. Australia (2006) CCPR/C/87/D/1157/200
114

National case law

Austria
Constitutional Court judgment of March 16 2007 (B 1954/06) on the Bring an end
to multiculturalism demonstration.

Georgia
Georgian Young Lawyers Association Zaal Tkeshelashvili, Lela Gurashvili and
Others v. Parliament of Georgia (5 November 2002) N2/2/180-183

Germany
BVerfGE 73, 206 (11 November 1986)
BVerfGE 92, 1
BVerfGE 104, 92
BVerfGE 69, 315 (Brokdorf decision) 14 May 1985
BVerfGE 63,115
BVERFGE 111, 147

Hungary
Constitutional Court Decision no. 21/1996 (V.17.) ABH 1997
Constitutional Court Decision 75/2008, (V.29.) AB, at: <http://www.mkab.hu/
index.php?id=decisions>.

Israel
Saar v. Minister of Interior and Police (1979) 34(II) PD 169

Latvia
Constitutional Court Judgment in the matter No. 2006-03-0106 (23 November 2006),
at: <http://www.satv.tiesa.gov.lv/ ?lang=2&mid=19>.

Nigeria
All Nigeria Peoples Party v. Inspector General of Police (Unreported, June 24,
2005) (Fed HC (Nig))

Poland
Judgment of the Polish Constitutional Tribunal, 18th January 2006, K 21/05, Require-
ment to Obtain Permission for an Assembly on a Public Road (English translation),
at: <http://w w w.tr ybunal.gov.pl/eng/summaries/documents/ K _ 21_ 05_
GB.pdf>.
 115

Russian Federation
Determination of the Constitutional Law of the Russian Federation on the appeal
of Lashmankin Alexander Vladimirovich, Shadrin Denis Petrovich and Shimovo-
los Sergey Mikhailovich against the violation of their Constitutional rights by the
provision of Part 5, Article 5 of the Federal Law on Assemblies, Meetings, Demon-
strations, Processions and Picketing, Saint-Petersburg (2 April, 2009).

Tanzania
Rev. Christopher Mtikila v. Attorney-General, High Court of Tanzania at Dodoma,
Civil Case No. 5 of 1993. Vol.1 Commonwealth Human Rights Law Digest, 1996, p.11.

United Kingdom
Austin v. Metropolitan Police Commissioner (2005) EWHC 480 (QB)
Campbell v. MGN Ltd [2004]
Gillan v. Commissioner of Police for the Metropolis & Another (2006) United King-
dom HL 12 (8 March 2006)
Tabernacle v. Secretary of State for Defence (2009) EWCA Civ 23
R (on the application of Laporte) v. Chief Constable of Gloucester Constabulary
(2006) UKHL 55
Austin and Saxby v. Commissioner of Police of the Metropolis (2009) UKHL 5

United States of America

Collin v. Chicago Park District, 460 F.2d 746 (7th Cir. 1972)
Connolly v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126 (1926)
Forsyth County, Georgia v. The Nationalist Movement, 505 U.S. 123 (1992)
Hague v. Committee for Industrial Organisation, 307 US 496 (1939)
Phelps-Roper v. Taft, 2007 US Dist. LEXIS 20831 (ND Ohio, March 23, 2007)
Schneider v. State, 308 U.S. 147 (1939)
Texas v. Johnson, 491 US 297 (1989)

Zambia
Mulundika and Others v. The People, Supreme Court, Zambia, 1 BHRC 199 (10 Jan-
uary 1996)
116

Annex C: English-Russian glossary of key terms

English term English definition Russian term Russian definition

Accountability An obligation to explain ones -

actions to another person or
organization. .

Assembly The intentional and tempo-

rary presence of a number -
of individuals in an open-air
public place for a common - -
purpose. .

Authorization The act of authorizing; per- ; , -

mission (expressly provided (
in writing). ).

Blanket (e.g. ban, Effective or applicable in all ,

restriction) instances.
.

Clear and A doctrine that allows the ,

present danger imposition of restrictions
test only when participants in an ,
assembly incite imminent law- -
less action and such action is ,
likely to occur.

.

Content neutrality A principle that only allows ,

(principle of) the restriction of expression -
without regard to the content
or communicative impact of ()
the message conveyed. -
.

Content-based A restriction that limits ex-

restrictions pression on the basis of the -
message it conveys. .

Counter- An assembly that is convened , -

demonstration to express disagreement with
the views expressed at anoth- ,
er public assembly, and takes ,
place at, or almost at, the -
same the same time and place
as the one it disagrees with. -
.
 117

Data retention The storage or preservation

of recorded information, re- , -
gardless of its format or the
media on which it may be re- ,
corded. .

Demonstration An assembly or procession -

held to express the point of ,
view of the participants. -
.

Derogation A partial repeal of a norm. -

.

Dispersal A formal requirement that

participants in an assembly -
leave the site of the assembly,
with the threat of the use of -
force by the authorities. .

Disruption An interruption of the normal ; ,

course of action.
.

Human rights Individuals, groups or oth- , -

defender er organs of society that work ,
or act to promote and protect -
universally recognized hu-
man rights and fundamental -
freedoms. .

Liability An enforceable legal obliga- , -

tion.
-
.

Monitor see Observer .

National security The quality or state of being -

capable of resisting hostile or
destructive acts from inside -
or outside a state.
.

Non-lethal A weapon that is designed to ,

weapons incapacitate the target rather , ,
than kill or seriously injure. .
118

Non-nationals Those who are not citizens of ,

a given state. .

Notification A notice that provides in- ,

formation on an upcoming
assembly and does not consti- -
tute a request for permission. .

Observer Someone who watches and , -

reports on the progress of an
assembly from a neutral point
of view. .

Organizer The person or persons with ,

primary responsibility for an
assembly. .

Parade see Procession. . .

Participant A person intentionally and , -

voluntarily present at an as-
sembly who supports the -
message of the assembly. .

Peaceful The right to protection of

enjoyment of property and against its dep- .
ones possessions rivation.
(right to)

Penalty A punishment established by -

law for its breach. .

Peremptory norm A fundamental principle of in- -

ternational law considered to ,
have acceptance among
the international community
of states as a whole. Peremp- . -
tory norms do not require
consent and cannot be violat- ,
ed by any state.

Permit The formal grant of permis- -

sion by a regulatory authority
to hold an assembly. .

Presumption in The presumption that an as- , ,

favor of holding sembly may proceed in the -
assemblies absence of well-founded justi-
fications for the imposition of
restrictions or for preventing ,
the assembly from occurring. -
.
 119

Prior restraint Restrictions imposed in ad- ,

vance of an event. .

Procession A gathering that moves along ; , -

public thoroughfares. A pro-
cession may involve the use of .
vehicle or other conveyances. -

.

Proportionality The principle requiring that ,

(principle of) the least intrusive means of () -
achieving the legitimate ob-
jective being pursued by the ,
authorities should always be , -
given preference.
.

Protection of The notion refers to public -

health and morals health and public morals.
.

Protection The prevention of major in-

of rights and terference with the conflicting -
freedoms of rights and freedoms of oth- .
others ers.

Public order Security in public places. -

.

Public safety A broad notion involving the , -

protection of the population
at large from various kinds
of significant damage, harm, , ,
or danger, including emer- -
gencies. .

Public space A space where everyone is ,

free to come and leave with-
out restriction (e.g., streets -
or parks). ( , ,
..).

Rally A static demonstration. ,

Reasonable A defence applicable where ,

excuse defence failure to comply was not , -
willful but a matter of impos-
sibility. , -
.


120

Regulatory The authority responsible for , -

authority taking decisions about public
assemblies. .

Riot control Measures taken to control an -

act of public violence by an ,
unruly mob. -
.

Risk assessment An assessment of possible

risks or problems associated , -
with an assembly and the de- ,
velopment of a plan of action
to counter such risks. .

Sanction A coercive measure intend- , -

ed to ensure compliance with
the law. .

Simultaneous An assembly that takes place ,

assemblies at the same time and place as ,
another one, but which has , -
no relationship to the oth-
er event. -
,
.

Sit-in A static demonstration in ,

which participants seat them- -
selves in a particular place
and refuse to move. .

Spontaneous An assembly that takes place ,

assembly as an urgent response to an -
event or item of news. .

Steward; marshal A person, working in co- ,

operation with assembly () (-
organizer(s), with a respon- ) ,
sibility to facilitate an event
and help ensure compliance -
with any lawfully imposed re-
strictions.
.

Supporter Someone who is in the close ,

proximity of the assembly and
shares the views expressed. -
.

Unlawful An assembly that proceeds in ,

assembly non-compliance with the law , -
regulating assemblies. .
 121

Use of force The exertion of physical force

as a means of compulsion or
coercion. .

Violence Illegal or abusive exertion of

physical force. .
122

Annex D Expert Panel composition

Neil JARMAN (Panel Chairperson; United Kingdom)

Neil Jarman is Director of the Institute for Conflict Research in Belfast, United Kingdom.
His academic interest is primarily in peacebuilding activity and conflict mitigation, with
specific focus on public assemblies and their policing, and community-based responses
to violence and public disorder. He is the author of numerous publications on issues such
as policing public order, human rights and conflict resolution, and combating hate crime.

Thomas BULL (Sweden)

Thomas Bull is a Professor of Constitutional Law at Uppsala University, in Uppsala,

Sweden. He specializes on issues of freedom of speech, freedom of assembly and free-
dom of association, as well as in comparative constitutional law in those areas. He is the
author of a number of books on these subjects. He has also published works on admin-
istrative, criminal and European law.

Nina BELYAEVA (Russian Federation)

Nina Belyaeva is Head of the Public Policy Department of the State University Higher
School of Economics, in Moscow, Russia. Her academic interests focus on the legal envi-
ronment for the public participation of civil society and legal forms of citizen-government
interaction. She is the principal author of the Russian Law on Public Associations of 1995.
Being a recognized practitioner and organizer of innovative forms of NGO activities,
Dr. Belyaeva is also Chairperson of the Board of We the citizens!, an international
coalition of NGOs, and President of Interlegal, an international foundation for political
and legal research. She has participated in numerous working groups on Russian fed-
eral and regional legislation regulating the activities of public associations and NGOs,
as well as many international expert groups created by CIVICUS, the World Bank and
the EU aimed at compiling good practices and elaborating model legislation in the field
of civil society and relations between civil society and state authorities.

David GOLDBERGER (United States)

David Goldberger is Professor Emeritus of Law at the Ohio State University. He teach-
es a course on the First Amendment to the US Constitution, and has taught a survey
course on the US Constitution and a course on lawyering skills. His academic writings
have focused primarily on the scope of the right to freedom of speech under the US
Constitution. Prior to becoming an academic, he was legal director of the American
 123

Civil Liberties Union, Illinois Division. Mr. Goldberger specializes in free-speech cases.
Through the years, his clients have included, among others, anti-Vietnam War demon-
strators, the National Socialist Party of America, the Communist Party of Illinois and
the Ku Klux Klan. He has also represented political candidates for state and county of-
fice from major political parties in the United States.

Michael HAMILTON (United Kingdom)

Michael Hamilton is an Associate Professor in the Legal Studies Department at the Cen-
tral European University, in Budapest, Hungary. He teaches in the Human Rights and
Comparative Constitutional Law programmes, including courses on freedom of expres-
sion and assembly. Before moving to Budapest, Dr. Hamilton was Co-Director of the
Transitional Justice Institute at the University of Ulster, in Belfast, United Kingdom. His
research has focused on the legal regulation and mediation of public protest, particu-
larly parade disputes in Northern Ireland (where he was Human Rights Advisor to the
Strategic Review of Parading).

Muatar S. KHAIDAROVA (Tajikistan)

Muatar S. Khaidarova is Director/Senior Legal Consultant of the Affiliate Office of the

International Center for Not-for-Profit Law in Tajikistan and Chairwoman of the NGO
Society and Law. She has authored a number of publications on the right to freedom
of association, access to information, and religion and the law. Her main interests and
responsibilities include: the comparative analysis and review of legislation on freedom
of association; consultation for foreign and international NGOs on various legal mat-
ters; providing technical legal assistance to various stakeholders with respect to current
and proposed laws and regulations on human rights protection, including preparation
of comment letters, participation in drafting sessions, and identification of good prac-
tices; the development and implementation of various training activities for NGOs and
NGO lawyers within Tajikistan; supporting the development and dissemination of pub-
lications on human rights; developing and maintaining appropriate contacts with local
officials who affect and/or cooperate with civil society actors and act as a liaison be-
tween the Tajik government and key civil society actors.

Serghei OSTAF (Moldova)

Serghei Ostaf is Director of the Resource Center for Human Rights (CReDO) a non-
profit organization that advocates for democratic change in Moldova. He is involved in
human rights advocacy work in Moldova, as well as advocacy activities with the Council
of Europe, UN human rights bodies and OSCE/ODIHR, through presenting research
and shadow reports, and bringing human rights cases to national courts and the Euro-
124

pean Court of Human Rights. His current activities include advocating for the adoption
of democratic public policies by the government of Moldova, and consulting on the ef-
fective implementation of such policies through legal and institutional mechanisms.

Vardan POGHOSYAN (Armenia)

Vardan Poghosyan is the founder of Democracy an Armenian think-tank focusing on

legal and political research. He is also Legal Advice Programme Leader with GTZ in Ar-
menia. His primary academic interest is in constitutional and administrative law, as well
as in comparative political systems. Mr. Poghosyan participated in a number of legislative
drafting projects in Armenia, including membership in the Working Group on Drafting
the Law on Conducting Meetings, Assemblies, Rallies and Demonstrations, as well as
participating in the drafting of constitutional amendments of 2005, the Law on Admin-
istrative Procedure and the Code of Administrative Court Procedure.

Alexander VASHKEVICH (Belarus)

Alexander Vashkevich is an Associate Professor in the Department of International Law

at Belarus State University in Minsk, Belarus. A former Justice of the Constitutional
Court of Belarus, he now teaches Comparative Constitutional Law and European Hu-
man Rights Law and has published extensively on human rights issues. Dr. Vashkevich
is Head of the Working Group on the Analysis of Belarusian Domestic Legislation and
Practice with the ECHR and Case Law of the European Court of Human Rights.

Yevgeniy A. ZHOVTIS (Kazakhstan)

Yevgeniy A. Zhovtis, a Kazakh human rights activist, is Director of the Kazakhstan In-
ternational Bureau for Human Rights and Rule of Law, an NGO, as well as a member
of the Board of Directors of the Interlegal Foundation. He has an extensive track record
as a defence lawyer. His primary interest is in civil liberties.

Andrzej RZEPLISKI (Poland) (to June 2009)

Andrzej Rzepliski is a Professor of Law at the Warsaw Universitys Faculty of Applied So-
cial Sciences and Rehabilitation. He specialized in the fields of basic rights and freedoms,
crimes of totalitarian regimes, and police and security service law, as well as in penology,
and has published extensively on those topics. He was a member of the Board of Direc-
tors of the Helsinki Foundation for Human Rights, the International Helsinki Federation for
Human Rights, the Polish Section of the International Commission of Jurists. He is an ex-
pert of the Council of Europe in training of judges and monitoring freedom of expression.
In December 2008 he was appointed as a judge to the Constitutional Tribunal of Poland.
 125

Endnotes
1
See CDL-AD(2005)040 Opinion on the OSCE/ODIHR Guidelines for Drafting Laws Pertain-
ing to Freedom of Assembly, adopted by the Venice Commission of the Council of Europe at
its 64th Plenary Session, Venice, 21-22 October 2005.
2
These Opinions can be found at: <http://www.legislationline.org> and <http://www.ven-
ice.coe.int/site/dynamics/ N _Opinion_ef.asp?L=E>.
3
See, for example, Oya Ataman v. Turkey (2006), para.16 (referring to the Venice Commissions
Opinion on the then-draft Guidelines); and Gillan and Quinton v. UK (2010), para.47 (a re-
quest for referral to the Grand Chamber was pending at the time of writing).
4
See, for example, Note by the Secretary-General on Human rights defenders: Promotion
and protection of human rights: human rights questions, including alternative approaches for
improving the effective enjoyment of human rights and fundamental freedoms (A/62/225
Sixty-second session), paras. 91-92, regarding the monitoring role performed by the Office of
the High Commissioner for Human Rights (OHCHR) during the April 2006 protests in Nepal.
Also see UN Doc. A/HRC/7/28/Add.3, Report of the Special Representative of the Secretary-
General on the situation of human rights defenders, Hina Jilani, Addendum: Mission to Serbia,
including Kosovo (4 March 2008), para.111 (see. Further, note 33).
5
Principally, the relevant standards contained in the International Covenant on Civil and Political
Rights and the European Convention on Human Rights, and the jurisprudence of the United
Nations Human Rights Committee and the European Court of Human Rights, respectively.
6
Including the constitutional courts of OSCE participating States and other states.
7
As the United Kingdom Joint Committee on Human Rights has recently stated, it is better to
draft legislation itself in sufficiently precise terms so as to constrain and guide police discretion,
rather than to rely on decision makers to exercise a broad discretion compatibly with human
rights. See Joint Committee on Human Rights, Demonstrating Respect for Rights: A Human
Rights Approach to Policing Protest (Volume 1) (London: HMSO, HL Paper 47-I; HC 320-I, 23
March 2009), pp.21-22 and para.76 (and repeated in Recommendation 4).
8
See, for example, Bczkowski and Others v. Poland (2006), para. 25: The Constitution clear-
ly guaranteed the freedom of assembly, not a right. It was not for the State to create a right to
assembly; its obligation was limited to securing that assemblies be held peacefully.
9
Tajik law, for example, defines a participant in terms of his or her support for the aims of the
event.
10
Article 22 of the ICCPR and Article 11of the ECHR. See Indirect Restrictions on Freedom of As-
sembly in para. 107.
11
Article 17, Council of Europe Framework Convention on National Minorities, which draws upon
paras. 32.4 and 32.6 of the Copenhagen Document of the CSCE.
12
Article 12 of the ICCPR and Article 2 of Protocol 4 of the ECHR.
13
For example, Djavit An v. Turkey (2003); Foka v. Turkey (2008). Also see Indirect Restrictions
on Freedom of Assembly in para.107.
14
Article 19(2) and (3) of the ICCPR and Article 10 of the ECHR. Freedom of expression includes
the freedom to hold opinions and to receive and impart information and ideas without interfer-
ence by public authorities and regardless of frontiers. The European Court of Human Rights
has recognized that freedom of assembly and freedom of expression are often, in practice,
126

closely associated. See, for example, Ezelin v. France (1991), paras. 37, 51; Djavit An v. Tur-
key (2003), para. 39; Christian Democratic Peoples Party v. Moldova (2006), para. 62; and
llinger v. Austria (2006), para. 38.
15
Article 18 of the ICCPR and Article 9 of the ECHR.
16
See, Joint Statement on Racism and the Media by the UN Special Rapporteur on Freedom of
Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Spe-
cial Rapporteur on Freedom of Expression, available at: <http://www.osce.org/documents/
rfm/2000/11/195_en.pdf>. Also see Helen Fenwick, The Right to Protest, the Human Rights Act
and the Margin of Appreciation Modern Law Review, Vol. 62, No. 4, July 1999, pp. 491-492-3.
17
See, for example, Enerji Yapi-Yol Sen v. Turkey (2009, in French only), in which the Grand
Chamber of the European Court of Human Rights acknowledged that, in participating in a na-
tional one-day strike action, trade-union members had been exercising their right to freedom
of peaceful assembly. Moreover, while the right to strike is not absolute, a ban prohibiting all
public servants or employees from taking such action was disproportionate and did not meet
a pressing social need.
18
As revised (STE No.163) 3 May 1996.
19
The International Labour Conference has pointed out in a resolution adopted at its 54th Ses-
sion, in 1970, that the right of assembly (among others) is essential for the normal exercise
of trade union rights. See, Freedom of association and collective bargaining: Resolution of
1970 concerning trade union rights and their relation to civil liberties (Document No. (ilolex):
251994G16). For a concrete example, see Committee of Experts on the Application of [ILO]
Conventions and Recommendations (CEACR), Individual Observation concerning Freedom
of Association and Protection of the Right to Organise Convention, 1948 (No. 87) Malawi
(ratification: 1999; Document No. (ilolex): 062006MWI087, published 2006): The Commit-
tee notes the violent police repression of a protest march by tea workers in September 2004
as well as issues previously raised by the Committee on the right to strike. [F]reedom of as-
sembly and demonstration constitutes a fundamental aspect of trade union rights and the
authorities should refrain from any interference which would restrict this right or impede the
lawful exercise thereof, provided that the exercise of these rights does not cause a serious and
imminent threat to public order.
20
For example, a number of cases have been communicated to Moldova by the European Court
of Human Rights in relation to the regulation of the election-related protests in 2009. See,
Popa (Radu) v. Moldova (Application no. 29837/09); Mocanu (Sergiu) v. Moldova (Applica-
tion no. 24163/09); Stati and Marinescu v. Moldova (Application no.19828/09); Mtsaru v.
Moldova (Application no. 20253/09). Similarly, Sultanov (Vidadi) v. Azerbaijan (Application
no. 21672/05).
21
See, for example, OSCE/ODIHR Panel on Freedom of Assembly and European Commission
for Democracy through Law (Venice Commission) Opinion on the Amendments to the Law
of the Kyrgyz Republic on the Right of Citizens to Assemble Peaceably, Without Weapons, to
Freely hold Rallies and Demonstrations, Strasbourg/Warsaw, 27 June 2008, Opinion-Nr.:
FOA KYR/111/2008), available at: <http://w w w.legislationline.org/download/action/
download/ id/824/file/test.pdf>. Also see OSCE Election Observation Mission, Kyrgyz
Republic, Presidential Election, 23 July 2009: Statement of Preliminary Findings and Con-
clusions, p.3; UN Human Rights Committee, Concluding Observations of the Human Rights
Committee: Republic of Moldova CCPR/C/MDA/CO/2, 4 November 2009, para.8(d). not-
ing that against the backdrop of violence at post-election demonstrations in April 2009, [t]
 127

he State party should: (d) Ensure respect for the right to freedom of assembly in accord-
ance with article 21 of the Covenant, including through the enforcement of the 2008 Law on
Assemblies and put in place safeguards, such as appropriate training, to ensure that such vi-
olation of human rights by its law enforcement officers do not occur again.; and UN Human
Rights Committee, Concluding Observations of the Human Rights Committee: Azerbaijan
CCPR/C/AZE/CO/3, 13 August 2009, paras.16-17.
22
Barankevich v. Russia (2007), para.30. In such circumstances, Article 11 should be interpreted
in light of Article 9 (see Barankevich, paras. 20 and 44). The Court further stated, in para.31: It
would be incompatible with the underlying values of the Convention if the exercise of Conven-
tion rights by a minority group were made conditional on its being accepted by the majority.
23
See, inter alia, Bczkowski and Others v. Poland (2007), para.63; Hyde Park and others v.
Moldova (No.1) (2009), para.28; Hyde Park and others v. Moldova (No.2) (2009), para.24;
Hyde Park and others v. Moldova (No.3) (2009), para.24; Chassagnou and Others v.France
[GC] (1999), para.112; Christian Democratic Peoples Party v. Moldova (Application no.
28793/02, judgment of 14 February 2006), para.64; and Young, James and Webster v.the
United Kingdom (1981), para.63.
24
The Universal Declaration of Human Rights (UDHR), adopted by the United Nations Gener-
al Assembly in 1948, is a declaration rather than a binding treaty. The International Covenant
on Economic, Social and Cultural Rights, and the International Covenant on Civil and Politi-
cal Rights (ICCPR) and its first Optional Protocol, were adopted in 1966 to give effect to the
principles enunciated in the Declaration. Together, the three documents constitute the Inter-
national Bill of Human Rights. The ICCPR sets out universally accepted minimum standards in
the area of civil and political rights. The obligations undertaken by states ratifying or acceding
to the Covenant are meant to be discharged as soon as a state becomes party to the ICCPR.
The implementation of the ICCPR by its States Parties is monitored by a body of independent
experts the UN Human Rights Committee. All States Parties are obliged to submit regular
reports to the Committee on how the rights are being implemented. In addition to the report-
ing procedure, Article 41 of the Covenant provides for the Committee to consider interstate
complaints. Furthermore, the First Optional Protocol to the ICCPR gives the Committee com-
petence to examine individual complaints with regard to alleged violations of the Covenant by
States Parties to the Protocol. See, further, Annex A.
25
The ECHR is the most comprehensive and authoritative human rights treaty for the European
region. The treaty has been open for signature since 1950. All Member States of the Council
of Europe are required to ratify the Convention within one year of the states accession to the
Statute of the Council of Europe. The ECHR sets forth a number of fundamental rights and
freedoms, and parties to it undertake to secure these rights and freedoms to everyone within
their jurisdiction. Individual and interstate petitions are dealt with by the European Court of
Human Rights in Strasbourg. At the request of the Committee of Ministers of the Council of
Europe, the Court may also give advisory opinions concerning the interpretation of the ECHR
and the protocols thereto. See Annex A.
26
As provided by Article 44 of the American Convention, Any person or group of persons, or
any nongovernmental entity legally recognized in one or more member States of the Organ-
ization [of American States], may lodge petitions with the [Inter-American] Commission [on
Human Rights] containing denunciations or complaints of violation of this Convention by a
State Party. See Annex A.
128

27
The CIS Convention was opened for signature on 26 May 1995 and came into force on 11 Au-
gust 1998. It has been signed by six of the 11 CIS member States (Armenia, Belarus, Kyrgyzstan,
Moldova, Russia and Tajikistan) and ratified by Belarus, the Kyrgyz Republic, the Russian Fed-
eration and Tajikistan. See, for example, Decision on the Competence of the [European] Court
[of Human Rights] to Give and Advisory Opinion concerning the coexistence of the Conven-
tion on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States
and the European Convention on Human Rights (2 June 2004).
28
See Article 29 of the UDHR for the general limitations clause.
29
See Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edi-
tion). (Kehl: N.P. Engel, 2005) pp. 481-494; Sarah Joseph, Jenny Schultz, and Melissa Castan,
The International Covenant on Civil and Political Rights (2nd edition) (New York: OUP, 2004)
pp. 568-575.
30
See, for example, the Organization of American States, Annual Report of the Office of the
Special Rapporteur for Freedom of Expression (2005), Chapter 5, Public Demonstrations
as an exercise of freedom of expression and freedom of assembly Available online at: <http://
w w w.cidh.oas.org/relatoria/showar ticle.asp?ar tID = 662&lID =1 ; U.N. Doc. A/62/225
Human Rights Defenders: Note by the Secretary-General, 13 August 2007, Section D, pp.8-14:
Monitoring the right to protest at the regional level: jurisprudence and positions of region-
al mechanisms. Available online at: http://w w w.unhcr.org/refworld/pdfid/4732dbaf2.
pdf>.
31
For example, following the judgment of the European Court of Human Rights (ECtHR) in Stank-
ov and the United Macedonian Organisation Ilinden v. Bulgaria (2001), the Bulgarian Ministry
of Justice sent the judgment of the ECtHR, translated into Bulgarian, and accompanied by a cir-
cular letter, to the mayors of the cities concerned. In order to inform the courts and the public
of the new binding interpretation of the law, the court also posted the Bulgarian translation of
the judgment on its website, at http://w w w.mjeli.government.bg/. See also Human Rights
Information Bulletin, No.64, 1 December 2004 28 February 2005, pp. 49-50. (ISSN 1608-
9618 H/Inf (2005) 3), available at: http://www.coe.int/ T/E/Human_Rights/hrib64e.pdf.
32
See, for example, Mkrtchyan v. Armenia (2007), para. 39, in relation to the requisite quality
of any such law if it is to meet the foreseeability standard.
33
Ukraine, for example, requested a review of its Draft Law on Organizing and Conducting
Peaceful Events. See Joint Opinion of ODIHR and the Venice Commission on the order of or-
ganizing and conducting peaceful events in Ukraine (14 December 2009) CDL-AD(2009)052;
Opinion no. 556/2009; ODIHR Opinion-Nr:FOA-UKR/144/2009. Available at: <http://www.
legislationline.org/download/action/download/ id/2908/file/14 4_ FOA _UKR _14%20
DEC09_en.pdf>. The need for clear legislation governing public assemblies has also been in
recognized in Kosovo: See: Report of the Special Representative on the situation of human
rights defenders, Hina Jilani, op. cit. note 4, para.111: At the time of the visit, the Kosovo Assem-
bly had recently adopted a law on public assembly, which was in the legal office of UNMIK for
examination. The Special Representative was later informed that the law could not be prom-
ulgated because legislation in this area is not within the competency of the Kosovo Assembly.
The legislation in force on freedom of assembly is therefore a law adopted in 1981 under the
former Socialist Federal Republic of Yugoslavia. [T]he Special Representative urges the
authorities to adopt adequate legislation on freedom of peaceful assembly. Adequate legis-
lation and its scrupulous implementation are fundamental to preventing the reoccurrence of
the tragic incidents that happened on 10 February 2007. The Special Representative suggests
 129

using the Guidelines on Freedom of Peaceful Assembly published by the Office for Democrat-
ic Institutions and Human Rights (ODIHR) of OSCE to draft and implement legislation in this
area. She further refers to the recommendations of her reports to the General Assembly of
2006 and 2007, which focus on freedom of peaceful assembly and the right to protest in the
context of freedom of assembly.
34
Op. cit., note 1, Point 12.
35
See, for example, Ezelin v. France (1991), para.35. Thus, if the right to freedom of peaceful
assembly is considered to be the lex specialis in a given case, it would not be plausible for a
court to find a violation of the right to freedom of expression if it had already established, on
the same facts, that there had been no violation of the right to freedom of peaceful assembly.
This question was touched upon by Mr. Kurt Herndl in his dissenting opinion in the case of
Kivenmaa v. Finland (1994) CCPR/C/50/D/412/1990, para. 3.5.
36
Otto-Preminger-Institut v. Austria (1994), para. 47.
37
See, for example, Vajnai v. Hungary (2008), paras, 20-26 (discussing the Article 17 jurispru-
dence, and finding that the application in this case did not constitute an abuse of the right of
petition for the purposes of Article 17). Similarly, Article 17 was not engaged in the cases of
Soulas v. France (2008, in French only), or Association of Citizens Radko & Paunkovski v. the
former Yugoslav Republic of Macedonia (1999), para. 77. These cases can be contrasted with
Glimmerveen and Hagenbeek v. the Netherlands (1979); Garaudy v. France (2003); and Le-
hideux and Isorni v. France (1998).
38
Also see Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, op.cit., note
29, p.373: The term assembly is not defined but rather presumed in the Covenant. There-
fore, it must be interpreted in conformity with the customary, generally accepted meaning in
national legal systems, taking into account the object and purpose of this traditional right. It
is beyond doubt that not every assembly of individuals requires special protection. Rather,
only intentional, temporary gatherings of several persons for a specific purpose are afforded
the protection of freedom of assembly. Further, in Kivenmaa v. Finland Communication No.
412/1990, para.7.6, the Human Rights Committee stated that public assembly is understood
to be the coming together of more than one person for a lawful purpose in a public place that
others than those invited also have access to.
39
A flash mob occurs when a group of people assemble at a location for a short time, perform
some form of action, and then disperse. While these events are planned and organized, they
do not involve any formal organization or group. They may be planned using new technologies
(including text messaging and Twitter). Their raison dtre demands an element of surprise,
which would be defeated by prior notification.
40
See (generally) the decisions of the German Constitutional Court in relation to roadblocks in
front of military installations. BVerfGE 73,206, BVerfGE 92,1 and BVerfGE 104,92. Note, howev-
er, that the blocking of public roads as a protest tactic can be restricted in certain circumstances
under Article 11(2) see, for example, Lucas v. UK (2003, admissibility), where the Europe-
an Court of Human Rights declared inadmissible the application of a demonstrator at Faslane
naval base in Scotland (where protesters against Trident nuclear submarines blocked a pub-
lic road) after her conviction for a breach of the peace.
In Christians Against Racism and Fascism (CARAF) (1980), the European Commission ac-
41

cepted that the freedom of peaceful assembly covers not only static meetings, but also public
processions (p.148, para. 4). This understanding has been relied upon in a number of subse-
130

quent cases, including Plattform rzte fr das Leben v. Austria (1988) and Ezelin v. France
(1991). In the latter, it was stated that the right to freedom of assembly is exercised in particu-
lar by persons taking part in public processions. (Commission, para. 32). Also see David Mead,
The Right to Peaceful Process under the European Convention on Human Rights A Content
Study of Strasbourg Case Law, 4 European Human Rights Law Review, (2007) pp. 345-384.

In Poznan, Poland, for example, authorities refused to recognize the Great Bike Ride, by a
42

critical mass group of cyclists, as a public assembly within the meaning of Article 7(2)(3) of
the Polish Assemblies Act and Article 57 of the Constitution of Poland. It thus treated the ride
as an other event under Article 65 of the Road Traffic Act (requiring the organizer to obtain
an administrative ruling granting consent). See Adam Bodnar and Artur Pietryka, Freedom of
Assembly from the Cyclists Perspective (Helsinki Foundation for Human Rights, 18 September
2009), referring to the Polish Constitutional Tribunal judgment of 18 January 2006 (K21/05),
relating to the Equality parade in Warsaw, where the Tribunal distinguished between assem-
blies (organized to express a point of view) and competitions or races (recreational events with
no political or communicative importance). Also see Kay v. Metropolitan Police Commissioner
[2008] UKHL 69, holding that a critical mass cycle ride with no pre-determined route could be
construed as a procession customarily held (and thus within the exemption from prior notifi-
cation under the United Kingdoms Public Order Act of 1986). Lord Phillips (para.25) identified
three possible alternative constructions of the notification requirement in the Act: (i) The noti-
fication obligation does not apply to a procession that has no predetermined route; (ii) There
is no obligation to give notice of a procession that has no predetermined route because it is
not reasonably practicable to comply with section 11(1); or (iii) The notification obligation is
satisfied if a notice is given that states that the route will be chosen spontaneously.
43
Barraco v. France (2009, in French only).
44
Women and Waves v. Portugal (2009). It is worth noting, however, that the European Commis-
sion of Human Rights previously held, in Anderson v. UK (Application No. 33689/96, decision
of 27 October 1997, admissibility), that there is no indication ... that freedom of assembly
is intended to guarantee a right to pass and re-pass in public places, or to assemble for pure-
ly social purposes anywhere one wishes.
45
See, for example, ilolu and Others v. Turkey (2007, in French only) in which the European
Court of Human Rights noted that unlawful weekly sit-ins (every Saturday morning for over
three years) of around 60 people in front of a high school in Istanbul, to protest against plans
to build an F-type prison, had become an almost permanent event that disrupted traffic and
clearly caused a breach of the peace: In view of the length and number of previous demonstra-
tions, the Court considered that the authorities had reacted within the margin of appreciation
afforded to States in such matters. It therefore held, by five votes to two, that [dispersal re-
sulted in] no violation of Article 11. Also see Cisse v. France (2002), in which the evacuation
of a church in Paris that a group of 200 illegal immigrants had occupied for approximately
two months was held to constitute an interference (albeit justified on public health grounds,
para.52) with the applicants right to freedom of peaceful assembly (paras.39-40). In the case
of Friedl v. Austria (1992) the European Commission in finding the applicants Article 11 com-
plaint to be inadmissible did not rule on whether a camp of (on average) 50 homeless persons
with tables and photo stands that lasted approximately one week day and night before be-
ing dispersed fell within the definition of peaceful assembly under Article 11(1) of the ECHR.
The Commission noted that it had previously held that a demonstration by means of repeat-
ed sit-ins blocking a public road did fall within the ambit of Article 11(1), although, ultimately,
 131

the demonstration was legitimately restricted on public order grounds (G v. the Federal Re-
public of Germany, 1989, admissibility). In 2008, the Hungarian Constitutional Court rejected
a petition that sought a finding of unconstitutional omission because the law failed to ade-
quately secure the protection of the right to free movement and the right to transport against
extreme forms of practising the right of assembly. The Constitutional Court held that, while
freedom of movement may be violated by events practically without time limits, such events
were not protected by Article 62(1) of the Constitution, as they cannot be regarded as as-
semblies. This term, as used in the Constitution, clearly refers to joint expressions of opinions
within fixed time limits. The Court noted that, while organizers might not know in advance
how long an assembly would actually last (and this could be several days), the time-frame
must still be set out in notification. An organizer may then subsequently file an additional no-
tification in order to have the duration of the event extended. (Decision 75/2008, (V.29.) AB).
Also worth noting is the United Kingdom case concerning Aldermaston Womens Peace Camp,
which, over the past 23 years, had established a camp on government-owned land, close to
the Atomic Weapons Establishment. The women camped out there on the second weekend of
every month, during which time they held vigils, meetings and distributed leaflets. In the Unit-
ed Kingdom case of Tabernacle v. Secretary of State for Defence [2009], a 2007 by-law that
attempted to prohibit camping in tents, caravans, trees or otherwise in controlled areas was
held to violate the appellants rights to freedom of expression and assembly. The court noted
that the particular manner and form of this protest (the camp) had acquired symbolic signifi-
cance inseparable from its message. Also see Lucas v. UK (2003, admissibility), op. cit., note
40.
46
Patyi and Others v. Hungary (2008) cf. va Molnr v. Hungary (2008), para.42, and Barra-
co v. France (2009, in French only). In finding a violation of Article 11 of the ECHR in the case
of Balcik and Others v. Turkey (2007), the European Court of Human Rights noted that it was
particularly struck by the authorities impatience in seeking to end the demonstration.
47
This draws on the United States doctrine of the public forum. See, for example, Hague v.
Committee for Industrial Organization, 307 US 496 (1939).
48
In Patyi and Others v. Hungary (2008), paras.42-43, for example, the European Court of Hu-
man Rights rejected the Hungarian governments arguments relating to potential disruption
to traffic and public transport, op. cit., note 46 (cf. va Molnr v. Hungary, 2008). For further
argument against the prioritization of vehicular traffic over freedom of assembly, see Nicholas
Blomley, Civil Rights Meets Civil engineering: Urban Public Space and Traffic Logic, Canadi-
an Journal of Law and Society, Vol. 22, No. 2,, 2007, pp. 55-72.
49
See, for example, Acik v. Turkey (2009) (detention of student for protest during a speech by
a university chancellor; violation of Articles 3 and 10 of the ECHR); Cisse v. France (2002);
Barankevich v. Russia (2007), para.25:The right to freedom of assembly covers both private
meetings and meetings in public thoroughfares . The use of such buildings may be subject
to health and safety regulations and to anti-discrimination laws. Also see the discussion of qua-
si-public space in the report by the UK Joint Committee on Human Rights, Demonstrating
Respect for Rights: A Human Rights Approach to Policing Protest (Volume 1), op. cit., note 7,
pp.16-17 Public and Private Space .
50
See, for example, Djavit An v. Turkey (2003), para. 56; Rassemblement Jurassien Unit Jurassi-
enne v. Switzerland (1979), p.119.
51
Public order and criminal laws also apply to assemblies on private property, enabling appro-
priate action to be taken if assemblies on private property harm other members of the public.
132

52
The owner of private property has much greater discretion to choose whether to permit a speak-
er to use his or her property than the government has in relation to publicly owned property.
Compelling the owner to make his or her property available for an assembly may, for exam-
ple, breach the owners rights to private and family life (Article 8 of the ECHR) or to peaceful
enjoyment of their possessions (Article 1 of Protocol 1 of the ECHR).
53
See, for example, Don Mitchell, The Right to the City: Social Justice and the Fight for Public
Space (New York: The Guilford Press, 2003); Margaret Kohn, Brave New Neighbourhoods:
The Privatization of Public Space (New York: Routledge, 2004); Kevin Gray and Susan Gray,
Civil Rights, Civil Wrongs and Quasi-Public Space, European Human Rights Law Review 46
[1999]; Ben Fitzpatrick and Nick Taylor, Trespassers Might be Prosecuted: The European Con-
vention and Restrictions on the Right to Assemble, European Human Rights Law Review, 292
[1998]; Jacob Rowbottom, Property and Participation: A Right of Access for Expressive Ac-
tivities, 2 EHRLR 186-202 [2005].
54
Appleby v. United Kingdom (2003), para.39, citing zgr Gndem v. Turkey (2000), par-
as.42-46, and Fuentes Bobo v. Spain (2000), para.38. It is noteworthy that the applicants in
Appleby cited relevant case law of Canada (para.31) and the United States (paras. 25-30 and
46). The Court considered (a) the diversity of situations obtaining in contracting states; (b)
the choices that must be made in terms of priorities and resources (noting that the positive ob-
ligations should not impose an impossible or disproportionate burden on the authorities);
and (c) the rights of the owner of the shopping centre under Article 1 of Protocol 1. In Cisse v.
France (2002), op. cit., note 45, the applicable domestic laws stated that Assemblies for the
purposes of worship in premises belonging to or placed at the disposal of a religious associa-
tion shall be open to the public. They shall be exempted from [certain requirements], but shall
remain under the supervision of the authorities in the interests of public order.
55
See, for example, Timothy Zick, Speech Out of Doors: Preserving First Amendment Liberties
in Public Places (New York: Cambridge University Press, 2009), pp. 130-132: In recent years,
local and national officials have altered the architectures and landscapes of public places in
whys that may limit spatial contestation. Zick also discusses architectural designs that limit
the scope for communicative interaction with those inside the buildings concerned (for exam-
ple, by incorporating few or no windows on lower flowers).
56
In Cisse v. France (2002), para.37 [emphasis added]. Also see G v. The Federal Republic of
Germany (1989), in which the European Commission stated that peaceful assembly does not
cover a demonstration where the organizers and participants have violent intentions that re-
sult in public disorder.
57
Christian Democratic Peoples Party v. Moldova (No.2) (2010), para.23: The burden of prov-
ing the violent intentions of the organisers of a demonstration lies with the authorities. There
have been a number of applications to the European Court of Human Rights relating to the
response of the Turkish authorities to an anti-Turkish demonstration on 19 July 1989 (the 15th
anniversary of the Turkish intervention in Cyprus). The Turkish government argued that the
violent character of the demonstration placed it outside the scope of Article 11 protection.
While apparently not accepting that Article 11 was inapplicable, the Court nonetheless found
that, having regard to the wide margin of appreciation to be afforded to the authorities, the
interference with the applicants right to freedom of assembly was not disproportionate. See
Protopapa v. Turkey (2009) at paras.107-111; Christodoulidou v. Turkey (2009) at paras.72-76;
Olymbiou v. Turkey (2009), paras.120-124; Papi v. Turkey (2009), paras.111-115; Strati v. Turkey
(2009), paras.121-125; and Vrahimi v. Turkey (2009), paras.117-121. The Court relied heavily
 133

upon an earlier report of the European Commission on Human Rights in Chrysostomos and
Papachrysostomou v. Turkey (1993), paras.109-110 (note, however, the dissenting opinion of
Mr. E. Busuttil in this case). The Commission pointed to evidence of violence contained in a
report by the UN Secretary General and video footage and photographs showing that dem-
onstrators had forced their way into the UN buffer zone, broken through a wire barrier
maintained by UNFICYP, and destroyed an UNFICYP observation post, and then broken
through the line formed by UNFICYP soldiers.
58
Plattform rzte fr das Leben v. Austria (1988), para. 32, which concerns a procession and
open-air service organized by anti-abortion protesters. Similarly, the European Court has often
stated that, subject to Article 10(2), freedom of expression is applicable not only to infor-
mation or ideas that are favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb the State or any sector of the pop-
ulation. Such are the demands of pluralism, tolerance and broadmindedness without which
there is no democratic society; Handyside v. The United Kingdom (1976), para.49. Applied
in Incal v. Turkey (1998), para.46; Otto-Preminger-Institut v. Austria (1994), para.49, and joint
dissenting judgment, para.3; Mller and Others v. Switzerland (1988), para.33; Observer and
Guardian v. United Kingdom (1991), para.59; Chorherr v. Austria (1993, Commission) para.39.
59
See BVerfGE 69,315(360) regarding roadblocks in front of military installations. See Fn.3:
Their sit-down blockades do not fall outside the scope of this basic right just because they
are accused of coercion using force. See, further, Quint, Civil Disobedience and the German
Courts, op. cit., note 40.
60
If a narrower definition of peaceful than this were to be adopted, it would mean that the scope
of the right would be so limited from the outset, that the limiting clauses (such as those con-
tained in Article 11(2) of the ECHR) would be virtually redundant.
61
Ziliberberg v. Moldova (2004, admissibility).
62
See, for example, the Northern Ireland case of In re E (a child) [2008] UKHL 66. There is a
minimum level of severity that must be met before behaviour can be deemed inhuman or
degrading for the purposes of Article 3 of the ECHR. This will depend on all circumstances
of the case including duration of treatment, its physical and mental effects and, in some cases,
the sex, age and state of health of the victim. Also see Nowak, UN Covenant on Civil and Po-
litical Rights, ICCPR Commentary, op. cit., note 29, pp. 486-487.
63
See, for example, recent funeral protest cases in the United States, such as Phelps-Roper v.
Taft, 2007 US Dist. LEXIS 20831 (ND Ohio, March 23, 2007). As Manfred Nowak states, In
accordance with the customary meaning of this word, peaceful means the absence of violence
in its various forms, in particular armed violence in the broadest sense. For example, an assem-
bly loses its peaceful character when persons are physically attacked or threatened, displays
smashed, furniture destroyed, cars set afire, rocks or Molotov cocktails thrown or other weap-
ons used. So-called sit-ins or blockades are peaceful assemblies, so long as their participants
do not use force . Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary,
op. cit., note 29, p. 487. Also see David Kretzmer, Demonstrations and the Law, 19(1) Isra-
el Law Review, No. 47, 1984, pp. 141-3, proposing that the limits of pickets as harassment be
guided by the following principles: (i) Pickets outside the office of a public figure cannot be re-
garded as harassment; (ii) Pickets outside the office or place of business of non-public figures
may only be regarded as harassment if they exceed the bounds of reasonableness as regards
duration and time; (iii) Pickets outside the residence of a public figure may not be regarded
as harassment unless they exceed the boundaries as to duration, occasion, time and alter-
134

native avenues. Also see the Interim Report of the Strategic Review of Parading in Northern
Ireland (2008), p.50, available at: http://cain.ulst.ac.uk/issues/parade/srp/srp290408inter-
im.pdf.
64
Rassemblement Jurassien & Unit Jurassien v. Switzerland (1979), pp. 93 and119; Christians
Against Racism and Facism v. UK (CARAF) (1980), p.148; G v. The Federal Republic of Ger-
many (1989), p.263; Anderson et al v. UK (1997), and Rai Almond and Negotiate Now v.the
United Kingdom, (1995), p.146.
65
See, for example, Plattform rzte fr das Leben v. Austria (1988).
66
See, for example, Balk and Others v. Turkey (2007), para.49, in which the European Court
of Human Rights suggests that state provision of such preventive measures is one of the pur-
poses of prior notification.
67
In Glec v. Turkey (1998), the European Court of Human Rights emphasized the importance
of law-enforcement personnel having appropriate resources: gendarmes used a very power-
ful weapon because they did not have truncheons, riot shields, water cannon, rubber bullets
or tear gas. The lack of such equipment is all the more incomprehensible and unacceptable
because the province is in a region in which a state of emergency has been declared. See,
further, Chapter 6 Policing Public Assemblies.
68
In Barankevich v. Russia (2007), para.33, for example, the European Court of Human Rights
was critical of the fact that there was no indication that an evaluation of the resources nec-
essary for neutralizing the threat [posed by violent counter-demonstrators] was part of the
domestic authorities decision-making process.
69
See, for example, OSCE/ODIHR Panel on Freedom of Assembly and European Commission
for Democracy through Law (Venice Commission) Opinion on the Amendments to the Law
of the Kyrgyz Republic on the Right of Citizens to Assemble Peaceably, Without Weapons, to
Freely hold Rallies and Demonstrations, op. cit., note 21, para. 37.
70
See, for example, llinger v. Austria (2006).
See, for example, Mary ORawe, Human Rights and Police Training in Transitional Societies:
71

Exporting the Lessons of Northern Ireland., Human Rights Quarterly, Vol. 27, No. 3, August
2005, pp. 943-968; Mary ORawe, Transitional Policing Arrangements in Northern Ireland:
The Cant and the Wont of the Change Dialectic, Fordham International Law Journal, Vol. 26,
No. 4, April 2003, pp.1015-1073.
72
See Hyde Park v. Moldova (No.2) (2009). In this case, it was emphasized that the reasons for
restrictions must be provided only by the legally mandated authority. The European Court of
Human Rights noted that the reasons cited by the Municipality for restrictions on a demon-
stration were not compatible with the relevant Assemblies Act, and it was not sufficient that
compatible reasons were later given by the Court: The Courts were not the legally mandated
authority to regulate public assemblies and could not legally exercise this duty either in their
own name or on behalf of the local authorities.
73
See Hashman and Harrup v. UK (1999), where a condition was imposed on protesters not to
behave contra bonos mores (i.e., in a way that is wrong rather than right in the judgment of the
majority of fellow citizens). This was held to violate Article 10 of the ECHR because the condi-
tion imposed was not sufficiently precise so as to be prescribed by law. In Gillan and Quinton
v. the United Kingdom (2010). the European Court of Human Rights reiterated (in para.77)
that the law must indicate with sufficient clarity the scope of any discretion conferred on
the competent authorities and the manner of its exercise. In this case, the Court found that,
 135

since the police powers under the Terrorism Act of 2000 to stop and search an individual for
the purpose of looking for articles that could be used in connection with terrorism were nei-
ther sufficiently circumscribed nor subject to adequate legal safeguards against abuse, they
were not, therefore, in accordance with the law (paras.76-87). Also see Steel and Others v.
UK (1998), and Mkrtchyan v. Armenia (2007), paras.39-43 (relating to the foreseeability of
the term prescribed rules in Article 180.1 of the Code of Administrative Offences. In the lat-
ter case, the Armenian government unsuccessfully argued that these rules were prescribed by
a Soviet Law that had approved, inter alia, the Decree on Rules for Organizing and Holding
of Assemblies, Rallies, Street Processions and Demonstrations in the USSR of 28 July 1988.
Also see, for example, Connolly v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126
(1926): A criminal statute cannot rest upon an uncertain foundation. The crime, and the ele-
ments constituting it, must be so clearly expressed that the ordinary person can intelligently
choose, in advance, what course it is lawful for him to pursue.
74
See European Court of Human Rights, Rekvnyi v. Hungary (1999), para 34.
75
See, for example, Gillan and Quinton v. the United Kingdom (2010), discussed further in note
73 ( a request for referral to the Grand Chamber was pending at the time of writing).
76
See, for example, Rassemblement Jurassien Unit Jurassienne v. Switzerland (1979).
77
David Feldman, Civil Liberties & Human Rights in England and Wales, 2nd ed., (Oxford: Ox-
ford University Press, 2002), p.57. (Emphasis added).
78
David Hoffman and John Rowe, Human Rights in the UK: An Introduction to the Human Rights
Act 1998 (2nd ed.) (Harlow: Pearson Education Ltd., 2006), p.106. Importantly, the only pur-
poses or aims that may be legitimately pursued by the authorities in restricting freedom of
assembly are provided for by Article 21 of the International Covenant on Civil and Political
Rights (ICCPR) and Article 11(2) of the ECHR. Thus, the only objectives that may justify the
restriction of the right to peaceably assemble are the interests of national security or public
safety, the prevention of disorder or crime, the protection of health or morals, or the protec-
tion of the rights and freedoms of others.
79
As such, for example, the dispersal of assemblies must only be used a measure of last resort
(see, further, paras.165-168 and 173).
80
See, for example, Republic of Latvia Constitutional Court, Judgment in the matter No. 2006-
03-0106 (23 November 2006), paras.29.1 and 32 (English translation): (29.1)The extensive
prohibitions in the very centre of the city essentially restricts the right of the persons to hold
meetings, processions and pickets (32) In the case law of Germany, it is recognized that
the institutions of power shall put up with any disturbance of traffic which it is not possible to
avoid when realizing freedom of assembly. If protesting is envisaged to take place in the cen-
tre, then it is not possible to make the procession move through the outskirts so that it does
not disrupt the movement of traffic (emphasis added).
See, for example, Campbell v. MGN Ltd (2004), paras.16-20, per Lord Nicholls. For detailed
81

discussion of parallel analysis (in relation to Articles 8 and 10 of the ECHR), see, further, Helen
Fenwick and Gavin Phillipson, Media Freedom under the Human Rights Act (Oxford: Oxford
University Press, 2006) pp.700-706. Also see the Hungarian Constitutional Courts approach
when confronted with a conflict between two fundamental rights (note 140).
82
See, for example, Makhmudov v. Russia (2007), para.65.
83
Ibid., at para.64.
136

84
Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (2001), para. 87. Also
see United Communist Party of Turkey and Others v. Turkey (1998), para. 47.
85
See the Brokdorf decision of the Federal Constitutional Court of Germany, BVerfGE 69,315
(353, 354).
86
See, for example, Christian Democratic Peoples Party v. Moldova (2006), para.71. Similar-
ly, Rosca, Secareanu and Others v. Moldova (2008), para.40 (citing the Christian Democratic
Peoples Party case).
87
See, for example, Republic of Latvia Constitutional Court, Judgment in the matter No. 2006-
03-0106 (23 November 2006), para.29.3 (English translation): The state may not prohibit
holding meetings, processions and pickets at foreign missions; only these activities shall not be
too noisy and aggressive. However, even in these cases this issue shall be solved on the lev-
el of application of legal norms (emphasis added). While the Court noted (in para.28.1) that
s.22(2) Vienna Convention on International Diplomatic Relations (1961) requires host states
to undertake all the adequate measures to protect premises of the mission from any kind of
breaking in or incurring losses and to avert any disturbance of peace of the mission or viola-
tion of its respect, it concluded (in para.28.3) that there is no norm which assigns the state
with the duty of fully isolating foreign diplomatic and consular missions from potential pro-
cessions, meetings or pickets. Also see David Mead, The New Law of Peaceful Protest: Rights
and Regulation in the Human Rights Era (Oxford: Hart Publishing, 2010), pp.101-2.
88
Rai, Almond and Negotiate Now v. United Kingdom (1995, admissibility).
89
See, for example, Republic of Latvia Constitutional Court, Judgment in the matter No. 2006-
03-0106 (23 November 2006), para.29.3 (English translation): The state has the duty not
only to ensure that a meeting, picket or a procession takes place, but also to see to it that free-
dom of speech and assembly is effective, namely that the organized activity shall reach the
target audience.
90
See, further, General Comment 18: Non-Discrimination, UN Human Rights Committee, UN
Doc. CCPR General Comment 18, (1989).
See for example, Haas v. Netherlands (2004), para.41. In light of judgement of the European
91

Court of Human Rights in Thlimmenos v. Greece (2000), Robert Wintemute argues that the
interpretation of Article 14 of the ECHR should be broadened to include two access routes,
so that not only the opportunity denied, but also the ground for its denial, could be deemed to
fall within the ambit of another Convention right, and so engage Article 14. See Robert Win-
temute, Within the Ambit: How big is the gap in Article 14 European Convention on Human
Rights? Part 1, European Human Rights Law Review, No. 4 (2004), 366-382.
92
See, for example, Sejdi and Finci v. Bosnia and Herzegovina (2009), the first case in which
the European Court of Human Rights found a violation of Protocol 12, holding (in para. 55)
that Notwithstanding the difference in scope between those provisions, the meaning of this
term in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see the Ex-
planatory Report to Protocol No. 12, para.18).
93
See Opuz v. Turkey (2009), paras.184-191 (here, in relation to domestic violence). Many prob-
lems have arisen specifically in relation to assemblies organized by Lesbian, Gay, Bisexual and
Transgender (LGBT) groups. See, further, Bczkowski and Others v. Poland (2007), where
the Court found there to be a violation of Article 14 in conjunction with Article 11 of the ECHR.
Also see Applications nos. 4916/07, 25924/08 and 14599/09 by Nikolay Aleksandrovich Ale-
kseyev against Russia, lodged on 29 January 2007, 14 February 2008 and 10 March 2009,
 137

respectively. At the time of writing, members of the organizational committee of the Belgrade
Pride Parade (which was to have been held on 20 September 2009) have challenged, inter alia,
the alleged failure of state organs in Serbia to take all reasonable measures to prevent private
acts of discrimination against the applicants. Also see Council of Europe, Parliamentary As-
sembly, Recommendation 211 (2007) on Freedom of Assembly and Expression for Lesbians,
Gays, Bisexuals and Transgendered Persons, 26 March 2007, available at: <https://wcd.coe.
int/ ViewDoc.jsp?id=1099699&Site= Congress&BackColorInternet=e0cee1&BackCo
lorIntranet=e0cee1&BackColorLogged=FFC679>, and the related Explanatory Report:
Freedom of Assembly and Expression for Lesbian, Gay, Bisexual and Transgendered Persons,
Congress of Local and Regional Authorities, Council of Europe, 26-28 March 2007, available
at: <https://wcd.coe.int/ ViewDoc.jsp?Ref= CPL(13)9PART2&Language=lanEnglish&
Ver=original&Site= COE&BackColorInternet=e0cee1&BackColorIntranet=e0cee1&
BackColorLogged=FFC679>. Furthermore, see UN General Assembly, Human rights de-
fenders: Note by the Secretary-General (report submitted by the Special Representative of
the Secretary-General on Human Rights Defenders, Hina Jilani, in accordance with General
Assembly resolution 60/161), UN Doc. A/61/312, 5 September 2006, para.71; Human Rights
Council, Report submitted by the Special Representative of the Secretary-General on Human
Rights Defenders, Hina Jilani, UN Doc. A/HRC/4/37, 24 January 2007, para. 96, available
at: <http://daccess-dds-ny.un.org/doc/ UNDOC/GEN/G07/104/17/ PDF/G0710417.
pdf?OpenElement>; Human Rights Council, Report of the Special Representative of the Sec-
retary-General on the Situation of Human Rights Defenders, Hina Jilani, Addendum: Summary
of cases transmitted to Governments and replies received, UN Doc. A/HRC/4/37/Add.1, 27
March 2007, para. 454. Also, ILGA, LGBT Rights - Freedom of Assembly: diary of events by
country (August 2008), available at: <http://w w w.ilga-europe.org/media_librar y/ lgbt_
rights_freedom_of_assembly_diar y_of_events_by_countr y_august_ 20 08>.
94
See Nicholas Toonen v. Australia, UN Human Rights Committee, No. 488/1992, UN Doc.
CCPR/C/50/D/488/1992 (04/04/94), para.8.7; Kozak v Poland (2010), para.92.
95
Article 21 of the Charter of Fundamental Rights of the European Union provides that Any
discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic
features, language, religion or belief, political or any other opinion, membership of a nation-
al minority, property, birth, disability, age or sexual orientation shall be prohibited. [2000]
C364/01, available at: <http://w w w.europarl.eu.int/char ter/pdf/text_en.pdf>.
96
Principle 20, Yogyakarta Principles on the Application of International Human Rights Law in
Relation to Sexual Orientation and Gender Identity (http://w w w.yog yakar taprinciples.
org/ ) provides that: Everyone has the right to freedom of peaceful assembly and associa-
tion, including for the purposes of peaceful demonstrations, regardless of sexual orientation or
gender identity. Persons may form and have recognised, without discrimination, associations
based on sexual orientation or gender identity, and associations that distribute information
to or about, facilitate communication among, or advocate for the rights of, persons of diverse
sexual orientations and gender identities. States shall: Take all necessary legislative, adminis-
trative and other measures to ensure the rights to peacefully organise, associate, assemble and
advocate around issues of sexual orientation and gender identity, and to obtain legal recogni-
tion for such associations and groups, without discrimination on the basis of sexual orientation
or gender identity; Ensure in particular that notions of public order, public morality, public
health and public security are not employed to restrict any exercise of the rights to peaceful
assembly and association solely on the basis that it affirms diverse sexual orientations or gen-
der identities; Under no circumstances impede the exercise of the rights to peaceful assembly
138

and association on grounds relating to sexual orientation or gender identity, and ensure that
adequate police and other physical protection against violence or harassment is afforded to
persons exercising these rights; Provide training and awareness-raising programmes to law
enforcement authorities and other relevant officials to enable them to provide such protec-
tion. Also see the accompanying Jurisprudential annotations, available at: <http://w w w.
yog yakar taprinciples.org/yog yakar ta-principles-jurisprudential-annotations.pdf>.
97
Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on meas-
ures to combat discrimination on grounds of sexual orientation or gender identity (adopted
by the Committee of Ministers on 31 March 2010 at the 1081st meeting of the Ministers Dep-
uties) provides that: III. Freedom of expression and peaceful assembly 14. Member states
should take appropriate measures at national, regional and local levels to ensure that the right
to freedom of peaceful assembly, as enshrined in Article 11 of the Convention, can be effec-
tively enjoyed, without discrimination on grounds of sexual orientation or gender identity; 15.
Member states should ensure that law-enforcement authorities take appropriate measures to
protect participants in peaceful demonstrations in favour of the human rights of lesbian, gay,
bisexual and transgender persons from any attempts to unlawfully disrupt or inhibit the ef-
fective enjoyment of their right to freedom of expression and peaceful assembly; 16. Member
states should take appropriate measures to prevent restrictions on the effective enjoyment of
the rights to freedom of expression and peaceful assembly resulting from the abuse of legal or
administrative provisions, for example on grounds of public health, public morality and public
order; 17. Public authorities at all levels should be encouraged to publicly condemn, notably in
the media, any unlawful interferences with the right of individuals and groups of individuals to
exercise their freedom of expression and peaceful assembly, notably when related to the hu-
man rights of lesbian, gay, bisexual and transgender persons.
98
In part, this was the argument raised by the applicants in Baczkowski and Others v. Poland
(2007) and (2006, admissibility). The applicants stated that they were treated in a discrimina-
tory manner, first because organizers of other public events in Warsaw in 2005 had not been
required to submit a traffic organization plan and, second, because they had been refused
permission to organize the March for Equality and related assemblies because of the homo-
sexual orientation of the organizers.
99
Thlimmenos v. Greece (2000), para.44.
100
Indirect discrimination occurs when an ostensibly non-discriminatory provision in law affects
certain groups disproportionately.
101
Nachova and Others v. Bulgaria [GC] (2005), para.161.
102
See Rassemblement Jurassien Unit Jurassienne v. Switzerland (1979), p. 119, and Christians
against Racism and Fascism v. the United Kingdom (1980), p. 148. Similarly, the right to free-
dom of thought, conscience and religion can be exercised by a church body or an association
with religious and philosophical objectives, ARM Chappell v. UK (1987), p.246.
103
Also see Article 17 of the Framework Convention on National Minorities: (1) The Parties un-
dertake not to interfere with the right of persons belonging to national minorities to establish
and maintain free and peaceful contacts across frontiers with persons lawfully staying in oth-
er States, in particular those with whom they share an ethnic, cultural, linguistic or religious
identity, or a common cultural heritage; (2) The Parties undertake not to interfere with the
right of persons belonging to national minorities to participate in the activities of non-govern-
mental organisations, both at the national and international levels.
 139

104
Adopted by GA Res 47/135,18 December 1992.
105
See Hyde Park v. Moldova No.1 (2009), para.28,citing Young, James and Webster v.the Unit-
ed Kingdom, 13 August 1981, para.63, Series A no. 44, and Chassagnou and Others v. France
[GC], nos. 25088/94, 28331/95 and 28443/95, para.112, ECHR 1999III). Similarly, see Hyde
Park v. Moldova No.2 (2009), para.24; Hyde Park v. Moldova No.3 (2009), para.24.
106
UN Human Rights Committee, General Comment 15, The position of aliens under the Cove-
nant.
107
See, further, Donatella della Porta, Abby Peterson and Herbert Reiter (eds.), The Policing of
Transnational Protest (Surrey: Ashgate, 2006).
108
Article 7(c), CEDAW also safeguards the right of women to participate in NGOs and associa-
tions concerned with the public and political life of the country. Also see Opuz v. Turkey (2009),
op. Cit., note 93.
109
Article 15, Convention on the Rights of the Child.
110
Article 1, UN Convention on the Rights of Persons with Disabilities.
111
Principle 1 (5), United Nations Principles for the Protection of Persons with Mental Illness and
the Improvement of Mental Health Care, United Nations General Assembly resolution 46/119.
112
Article 11(2), European Convention for the Protection of Human Rights and Fundamental
Freedoms. See, for example, Demir and Baykara v. Turkey (2008), para.109: The Convention
makes no distinction between the functions of a Contracting State as holder of public power
and its responsibilities as employer. Article 11 is no exception to that rule. On the contrary, par-
agraph 2 in fine of this provision clearly indicates that the State is bound to respect freedom of
assembly and association, subject to the possible imposition of lawful restrictions in the case
of members of its armed forces, police or administration (see Tm Haber Sen and nar). Ar-
ticle 11 is accordingly binding upon the State as employer, whether the latters relations with
its employees are governed by public or private law .... Also see Enerji Yapi-Yol Sen v. Turkey
(2009, in French only), op. cit., note 17.
113
See Ahmed and Others v. United Kingdom (1998); Rekvnyi v. Hungary (1999).
114
See Hyde Park v. Moldova No.1 (2009), at para.31, op cit., note 72. It is true that new reasons
for rejecting Hyde Parks application to hold an assembly were given by the courts during the
subsequent judicial proceedings. However, sections 11 and 12 of the Assemblies Act give ex-
clusive authority to the local authorities to authorise or not assemblies. Similarly, Hyde Park
v. Moldova No.2 (2009), para.27; Hyde Park v. Moldova No.3 (2009), para.27.
115
See, for example, the Parades Commission in Northern Ireland, whose members are appointed
in accordance with Schedule 1 of the Public Processions (NI) Act 1998, and which, as a body,
must be as representative as is possible of the community as a whole (para.2[3] of Schedule
1).
116
See, for example, Joint Statement on Racism and the Media by the UN Special Rapporteur on
Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and
the OAS Special Rapporteur on Freedom of Expression, op. cit., note 16. One example of good
practice is provided by the Northern Ireland Parades Commission, which publishes details of
all parades and related protests in Northern Ireland for which notification has been given cate-
gorized according to the towns in which they are due to take place. See, further, <http://www.
paradescommission.org>. Also see, for example, the records maintained by the Strathclyde
Police in Scotland relating to the policing of public processions, available at: <http://strath-
140

clydepoliceauthority.gov.uk/ images/stories/CommitteePapers/ FullAuthority20 09/

FA1October20 09/ item%206%20 -%20review%20of%20police%20resources%20de-
ployed%20at%20marches%20and%20parades.pdf>.
117
That the authorities should not supplement the legitimate aims, particularly with arguments
based on their own view of the merits of a particular protest, see Hyde Park v. Moldova No.3
(2009), para.26.
118
This point has recently been emphasized by the Council of Europes Committee of Ministers. See
recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on meas-
ures to combat discrimination on grounds of sexual orientation or gender identity (Adopted
by the Committee of Ministers on 31 March 2010 at the 1081st meeting of the Ministers Dep-
uties, para.16, op cit., note 97.
119
In the Brokdorf decision of the German Federal Constitutional Court (1985) (1 BvR 233,
341/81), for example, public order was understood as including the totality of unwritten
rules, obedience to which is regarded as an indispensable prerequisite for an orderly commu-
nal human existence within a defined area according to social and ethical opinions prevailing
at the time.
120
For example, Makhmudov v. Russia (2007).
121
Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (2001), para.94.
122
See, further, Ezelin v. France (1991) and Ziliberberg v. Moldova (2004).
123
See, for example, Christian Democratic Peoples Party v.Moldova(No.2) (2010), para.27.
Finding a violation of Article 11 of the ECHR, the European Court of Human Rights stated that
the applicant partys slogans, even if accompanied by the burning of flags and pictures, was a
form of expressing an opinion in respect of an issue of major public interest, namely the pres-
ence of Russian troops on the territory of Moldova.
124
Norris v. Ireland (1988), paras.44-46. It is noteworthy that public morals as a legitimate ground
for limiting freedom of assembly is not synonymous with the moral views of the holders of po-
litical power. See Judgment of the Polish Constitutional Tribunal, 18th January 2006, K 21/05,
Requirement to Obtain Permission for an Assembly on a Public Road (English translation), avail-
able at: <http://w w w.tr ybunal.gov.pl/eng/summaries/documents/ K _ 21_05_GB.pdf>.
125
See, for example, Hashman and Harrup v. UK (1999), regarding the common law of offence
of behaviour deemed to be contra bones mores.
126
For criticism of a legislative provision relating to morality, see: <http://w w w.bahrainrights.
org/node/208; http:// hr w.org/english/docs/20 06/06/08/bahrai13529.htm>. Man-
fred Nowaks commentary on the ICCPR cites assemblies near or passing holy locations or
cemeteries (in relation to morality) or natural-protection or water-conservation grounds (in
relation to public health) as particular examples. See Nowak, UN Covenant on Civil and Polit-
ical Rights, op. cit., note 29, p. 493.
127
See, for example, Tania Groppi, Freedom of thought and expression, General Report, Politi-
cal Structure and Human Rights, citing the Constitutional Court of Hungary (European Union
Meeting, Union of Turkish Bar, Ankara 16-18 April 2003), p.6, available at: <http://www.unisi.
it/ricerca/dip/dir_eco/COMPAR ATO/groppi4.doc>. See, for example, Hungarian Consti-
tutional Court, Decision no. 21/1996 (V.17.) [ABH 1997] 74, p. 84.
128
Also see note 45 (and accompanying text in para.18) regarding temporariness. In the United
States case of Schneider v. State, 308 U.S. 147 (1939), it was held that there was a right to leaf-
 141

let even though the leafleting caused litter. In Collin v. Chicago Park District, 460 F.2d 746 (7th
Cir. 1972), it was held that there was a right to assemble in open areas that park officials had
designated as picnic areas. In Eugen Schmidberger, Internationale Transporte und Planzuge
v. Republik Osterreich (2003), the European Court of Justice held that allowing a demonstra-
tion that blocked the Brenner Motorway between Germany and Italy for almost 30 hours was
not a disproportionate restriction on the free movement of goods under Article 28 of the EC
Treaty). The Court provided three reasons: (1) the disruption was a relatively short duration
and on an isolated occasion; (2) measures were taken to limit the disruption caused; and (3)
excessive restrictions on the demonstration could have deprived the demonstrators of their
rights to expression and assembly, and indeed possibly caused greater disruption. The Austri-
an authorities determined that they had to allow the demonstration to go ahead because the
demonstrators were exercising their fundamental rights of freedom of expression and free-
dom of assembly under the Austrian constitution. Also see Commission v. France (1997), which
concerned protests by French farmers directed against agricultural products from other EU
Member States. The Court held that, by failing to adopt all necessary and proportionate meas-
ures in order to prevent the free movement of fruit and vegetables from being obstructed by
actions by private individuals, the French government had failed to fulfil its obligations under
Article 30 of the EC Treaty, in conjunction with Article 5 of the Treaty.
129
va Molnr v. Hungary (2008), para.34: The Court notes that restrictions on freedom of peace-
ful assembly in public places may serve the protection of the rights of others, with a view to
preventing disorder and maintaining the orderly circulation of traffic. As Nicholas Blomley ar-
gues, traffic logic serves to reconstitute public space Public space is not a site for citizenship,
but a mere transport corridor. See Nicholas Blomley, Civil Rights Meet Civil Engineering:
Urban Public Space and Traffic Logic, op. cit., note 48, p. 64. Also see Timothy Zick, Speech
Out of Doors: Preserving First Amendment Liberties in Public Places, op. cit., note 55.
130
See, for example, Ashughyan v. Armenia (2008), para.90. Similarly, see Balk and Others v.
Turkey (2007), para.49; Oya Ataman v. Turkey (2006), para.38; and Nurettin Aldemir and
others v. Turkey (2007), para.43.
131
The UN Declaration on the Rights of Indigenous Peoples includes a right to be consulted on
decisions and actions that have an impact on indigenous peoples rights and freedoms.
132
In so far as other non-Convention rights are concerned, only indisputable imperatives can
justify the imposition of restrictions on public assemblies. See, for example, Chassagnou v.
France (1999), para.113: It is a different matter where restrictions are imposed on a right or
freedom guaranteed by the Convention in order to protect rights and freedoms not, as such,
enunciated therein. In such a case only indisputable imperatives can justify interference with
enjoyment of a Convention right. This clearly sets a high threshold: There must be a verifiable
impact (indisputable) on the lives of others requiring that objectively necessary (impera-
tive) steps be taken. It is not enough that restrictions are merely expedient, convenient or
desirable.
133
The right to private life covers the physical and moral integrity of the person (X and Y v. The
Netherlands, 1985, para. 22), and the state must not merely abstain from arbitrary interfer-
ence with the individual but also positively ensure effective respect for private life. This can
extend even into the sphere of relations between individuals. Where it is claimed that a right
to privacy is affected by freedom of assembly, the authority should seek to determine the va-
lidity of that claim and the degree to which it should tolerate a temporary burden. The case
142

of Moreno Gmez v. Spain (2004) might give some indication of the high threshold that must
first be overcome before a violation of Article 8 can be established.
134
See, for example, Chassagnou and Others v. France (1999). Also see Gustafsson v. Sweden
(1996). The right to peacefully enjoy ones possessions has been strictly construed by the Euro-
pean Court of Human Rights so as to offer protection only to proprietary interests. Moreover,
for a public assembly to impact on the enjoyment of ones possessions to an extent that would
justify the placing of restrictions on it, a particularly high threshold must first be met. Busi-
nesses, for example, benefit from being in public spaces and, as such, should be expected to
tolerate alternative uses of that space. As previously emphasized, freedom of assembly should
be considered a normal and expectable aspect of public life.
135
Note, however, that Article 5 of the ECHR is concerned with total deprivation of liberty, not
mere restrictions upon movement (which might be covered by Article 2 of Protocol 4). This
distinction between deprivation of, and mere restriction upon, liberty has been held to be
one of degree or intensity, and not one of nature or substance. See Guzzardi v. Italy (1980),
para.92; and Ashingdane v. the United Kingdom (1985), para.41. Also see R (on the application
of Laporte) v. Chief Constable of Gloucester Constabulary [2006] UKHL 55; and Austin and
Saxby v. Commissioner of Police of the Metropolis [2009] UKHL 5. For critique of the latter
judgment, see David Mead, Of Kettles, Cordons and Crowd Control: Austin v. Commission-
er of Police for the Metropolis and the Meaning of Deprivation of Liberty, European Human
Rights Law Review, Issue 3, 2009, pp. 376-394; Helen Fenwick, Marginalising human rights:
breach of the peace, kettling, the Human Rights Act and public protest Public Law (2009),
pp. 737-765.
136
Significantly, however, the right to free movement does not generally refer to the use of pub-
lic roads but, rather, to the possibility of changing ones place of residence. See, for example,
the judgement of the Polish Constitutional Tribunal, Case 21/05, 18 January 2006 (also cited in
the decision of the Hungarian Constitutional Court, Decision 75/2008, (V.29.) AB, para.2.3).
Also see note 45 and 128.
137
Acik v. Turkey (2009), para.45: In the instant case, the Court notes that the applicants protests
took the form of shouting slogans and raising banners, thereby impeding the proper course of
the opening ceremony and, particularly, the speech of the Chancellor of Istanbul University.
As such, their actions no doubt amounted to an interference with the Chancellors freedom of
expression and caused disturbance and exasperation among some of the audience, who had
the right to receive the information being conveyed to them.
138
llinger v. Austria (2006), at para. 46. For such a claim to be upheld would require that the as-
sembly impose a direct and immediate burden on the expressive rights or the exercise of the
religious beliefs of others.
139
See Hyde Park v. Moldova No.1 (2009), para.28,citing Young, James and Webster v.the Unit-
ed Kingdom (1981), para.63, and Chassagnou and Others v. France [GC] (1999). Similarly,
Hyde Park v. Moldova No.2 (2009) para.24, and Hyde Park v. Moldova No.3 (2009), para.24.
140
See the discussion of parallel scrutiny in note 81 (and accompanying text). Also see, for ex-
ample, the Hungarian Constitutional Court, Decision 75/2008, (V.29.) AB, para.2.2 (referring
to a previous decision of the Court, ABH 2001, pp. 458-459: with respect to the prevention
of a potential conflict between two fundamental rights: the authority should be statutorily
empowered to ensure the enforcement of both fundamental rights or, if this is impossible, to
ensure that any priority enjoyed by one of the rights to the detriment of the other shall only be
of a temporary character and to the extent absolutely necessary.
 143

141
The Johannesburg Principles, ARTICLE 19, November 1996 (ISBN 1 870798 48 1).
142
Available at: <http://w w w.icj.org>. Similarly, the United Nations Global Counter-Terrorism
Strategy, adopted by Member States on 8 September 2006, emphasized, in part IV that effec-
tive counter-terrorism measures and the protection of human rights are not conflicting goals,
but complementary and mutually reinforcing, and that States must ensure that any measures
taken to combat terrorism comply with their obligations under international law, in particular
human rights law....
143
Adopted by the Committee of Ministers on 26 September 2007 at the 1005th meeting of the
Ministers Deputies. Available at: <https://wcd.coe.int/ ViewDoc.jsp?id=1188493>.
144
Particularly, Chapter 16 Freedom of Association and the Right to Peaceful Assembly, pp.240-150.
Available at: <http://w w w.osce.org/publications/odihr/20 07/11/28294_ 980_en.pdf>.
145
The EU Council Framework Decision on combating terrorism (2008/919/JHA of 28 November
2008 amending Framework Decision 2002/474/JHA) requires that member States criminalize
public provocation to commit a terrorist offence (including where such conduct, whether
or not directly advocating terrorist offences, causes a danger that one or more such offences
may be committed).
146
The Ten Basic Human Rights Standards for Law Enforcement Officials adopted by Amnes-
ty International also provide that exceptional circumstances, such as a state of emergency or
any other public emergency, cannot be used to justify any departure from these standards. AI
Index: POL 30/04/98.
147
Makhmudov v. Russia (2007), para.68.
148
See Donatella della Porta, Massimiliano Andretta, Lorenzo Mosca and Herbert Reiter, Glo-
balization from Below: Transnational Activists and Protest Networks (Minneapolis: University
of Minnesota Press, 2006) pp. 157-8, citing Italian Parliamentary Investigative Commission
(IPIC) Minutes of the Hearing. August 28, 2001, at <http://w w w.camera.it>. The suspen-
sion of the Schengen Agreement on free movement (11-21 July 2001) permitted border checks
on people in advance of the G8 Summit in Genoa. A total of 140,000 people were checked,
and 2,093 people were refused entry. Also see Lluis Maria de Puig (Rapporteur) Democratic
Oversight of the Security Sector in Member States, Report for the Political Affairs Committee,
Parliamentary Assembly of the Council of Europe, (2 June 2005, Doc. 10567), para.97, availa-
ble at: <http://assembly.coe.int/Documents/ WorkingDocs/Doc05/EDOC10567.htm>;
and Tony Bunyan, Protests in the EU: Troublemakers and travelling violent offenders [un-
defined] to be recorded on database and targeted (Statewatch: 2010). Available at: <http://
www.statewatch.org/analyses/no-93-troublemakers-apr-10.pdf>. See, further, note 168.
149
See, for example, Gillan and Quinton v. the United Kingdom (2010), in which police stop-and-
search powers under section 44 of the United Kingdoms Terrorism Act of 2000 were held
not to be in accordance with the law for the purposes of Article 8 of the ECHR (the right to
private and family life). This was, in part, due to the breadth of the powers (the exercise of
which did not require reasonable suspicion on the part of the police officer) and also the lack
of adequate safeguards against arbitrariness: such a widely framed power could be misused
against demonstrators and protestors (see paras. 76-87). Also see note 7, and paragraphs 35-
38 (Legality) and paragraph 161 (regarding police stop and search powers).
150
Also see para. 25 of the 1990 Document of the Copenhagen Meeting of the Conference on the
Human Dimension of the CSCE.
144

151
See Lawless v. Ireland (1961), para.28. Also see Nicole Questiaux, Study of the implications for
human rights of recent developments concerning situations known as states of siege or emer-
gency, UN doc. E/CN.4/Sub.2/1982/15, 27 July 1982. In addition, General Comment No.29
of the UN Human Rights Committee (August 2001) provides examples rights that cannot be
derogated from.
152
Siracusa Principles, paras, 40-41. Annex, UN Doc E/CN.4/1984/4 (1984) <http://w w w1.
umn.edu/ humanr ts/ instree/siracusaprinciples.html>);
153
See Article 4(1) of the ICCPR, and the Cyprus case, (1958-59) Yearbook of the ECHR 174.
154
Hyde Park and Others v. Moldova No.1 (2009), para.26. Here, an event to protest against
Moldovas electronic voting in the Eurovision Song Contest was prohibited on the basis that
the Parliament was not responsible for organising the Eurovision song contest, which took
place in Ukraine and the protest was groundless because it concerned past events. In finding
a violation of Article 11 of the ECHR, the European Court held that Such reasons cannot be
considered compatible with the requirements of Article 11 of the Convention .
155
For example, Incal v. Turkey (1998), para.54. Also see the Human Rights Committees Conclud-
ing Comments on Belarus [1997], UN doc. CCPR/C/79/Add. 86, para.18, available at: <http://
www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR .C .79. Add.86.En?Opendocument>: De-
cree No. 5 of 5 March 1997 imposes strict limits on the organization and preparation of
demonstrations, lays down rules to be observed by demonstrators, and bans the use of post-
ers, banners or flags that insult the honour and dignity of officials of State organs or which
are aimed at damaging the State and public order and the rights and legal interests of citizens.
These restrictions cannot be regarded as necessary in a democratic society to protect the val-
ues mentioned in article 21 of the Covenant.
156
In the case of Incal v. Turkey (1998), for example, the applicants conviction for helping to pre-
pare a political leaflet that urged the population of Kurdish origins to band together and set
up Neighbourhood Committees based on the peoples own strength was held by the Euro-
pean Court to have violated the applicants freedom of expression under Article 10. Read in
context, the leaflet could not be taken as incitement to the use of violence, hostility or hatred
toward other citizens.
157
In the case of Cisse v. France (2002), the European Court of Human Rights stated (para.50)
that The Court does not share the Governments view that the fact that the applicant was an
illegal immigrant sufficed to justify a breach of her right to freedom of assembly, as ... [inter
alia] ... peaceful protest against legislation which has been contravened does not constitute
a legitimate aim for a restriction on liberty within the meaning of Article 11(2). In Tsonev v.
Bulgaria (2006), the European Court of Human Rights found that there was no evidence that
merely using the word revolutionary (the Bulgarian Revolutionary Youth Party) represented a
threat to Bulgarian society or to the Bulgarian State. Nor was there anything in the Partys con-
stitution that suggested it intended to use violence in pursuit of its goals. Also see Stankov and
the United Macedonian Organization (2001), paras.102-3, and United Macedonian Organisa-
tion Ilinden and Others v. Bulgaria (2006), para.76. In Christian Democratic Peoples Party v.
Moldova (No.2) (2010), para.27, the Court rejected the Moldovan governments assertion that
that the slogans Down with Voronins totalitarian regime and Down with Putins occupation
regime, even when accompanied by the burning of a picture of the President of the Russian
Federation and a Russian flag, amounted to calls to violently overthrow the constitutional re-
gime, to hatred towards the Russian people, and to an instigation to a war of aggression against
Russia. The Court held that these slogans could not reasonably be considered to be a call for
 145

violence, but rather should be understood as an expression of dissatisfaction and protest,

as a form of expressing an opinion in respect of an issue of major public interest, namely the
presence of Russian troops on the territory of Moldova.
158
Article 20(2) of the ICCPR.
159
Principle 4 of the Council of Europe Committee of Ministers Recommendation No. R(97)20.
The Appendix to Recommendation No. R(97) 20 defines hate speech as covering all forms
of expression which spread, incite, promote or justify racial hatred, xenophobia, antisemitism
or other forms of hatred based on intolerance, including: intolerance expressed by aggressive
nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and
people of immigrant origin. See, further, the UN Convention on the Elimination of All Forms
of Racial Discrimination, and Resolution (68) 30 of the Committee of Ministers on Measures to
be taken against incitement to racial, national and religious hatred. See, for example, the Aus-
trian Constitutional Court judgment of March 16 2007 (B 1954/06) upholding a prohibition on
an assembly because (in part) national-socialist slogans had been used at a previous assembly
(in 2006) with the same organizer. The Austrian National-Socialist Prohibition Act 1947 pro-
hibited all national-socialist activities. Also see the Holocaust denial cases of Ernst Zndel v.
Canada, Communication No.953/2000, UN Doc. CCPR/C/78/D/953/2000 (2003), para.5.5:
The restriction ... served the purpose of protecting the Jewish communities right to religious
freedom, freedom of expression, and their right to live in a society free of discrimination, and
also found support in article 20, paragraph 2, of the Covenant; and Robert Faurisson v. France,
Communication No.550/1993, UN Doc. CCPR/C/58/D/550/1993 (1996), para.9.6 Since
the statements ... read in their full context, were of a nature as to raise or strengthen anti-se-
mitic feelings, the restriction served the respect of the Jewish community to live free from fear
of an atmosphere of anti-semitism.
160
See, for example, the Red Star case of Vajnai v. Hungary (2008), para.49: no real and present
danger of any political movement or party restoring the Communist dictatorship. Cf. Lehi-
deux and Isorni v. France (1998). Cf. Lehideux and Isorni v. France (1998); In Stankov and the
United Macedonian Organisation Ilinden v. Bulgaria (2001, the Court rejected the Bulgarian
governments assertion that the context of the difficult transition from totalitarian regimes to
democracy, and due to the attendant economic and political crisis, tensions between cohabiting
communities, where they existed in the region, were particularly explosive. Also see Associ-
ation of Citizens Radko & Paunkovski v. the former Yugoslav Republic of Macedonia (2009).
Also see Soulas v. France (2008, in French only): finding no violation of Article 10, the Courts
press release emphasizes that when convicting the applicants, the domestic courts had un-
derlined that the terms used in the book were intended to give rise in readers to a feeling of
rejection and antagonism, exacerbated by the use of military language, with regard to the com-
munities in question, which were designated as the main enemy, and to lead the books readers
to share the solution recommended by the author, namely a war of ethnic re-conquest. The
issue of unregistered insignia is raised in the communicated case of Hmelevschi (Boris) and
Moscalev (Vladimir) v. Moldova (Applications nos. 43546/05 and 844/06), with the symbol
at issue being red armbands with a black hammer and sickle in a white circle.
161
See, for example, the Polish Constitutional Court judgment of 10 July 2004 (Kp 1/04); City of
Dayton v. Esrati, 125 Ohio App. 3d 60, 707 N.E.2d 1140 (1997).
162
See, for example, Republic of Latvia Constitutional Court, Judgment in the matter No. 2006-
03-0106 (23 November 2006), para.29.1 (English translation): Inelastic restrictions, which
146

are determined in legal norms as absolute prohibitions, are very rarely regarded as the most
considerate measures.
163
See, for example, Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (2001),
para. 97; Association of Citizens Radko & Paunkovski v. The Former Yugoslav Republic of Mac-
edonia (2009), para.76.
164
For example, Zvozskov v. Belarus (1039/2001) UN Human Rights Committee, 10 November
2006. 22 B.H.R.C. 114. Also see note 19, emphasizing that freedom of assembly is essential for
the normal exercise of trade union rights.
165
See, for example, The Guidelines for Review of Legislation Pertaining to Religion or Belief,
prepared by the OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion or Belief,
in consultation with the European Commission for Democracy through Law (Venice Com-
mission). The Guidelines state that Religious association laws that govern acquisition of legal
personality through registration, incorporation, and the like are particularly significant for
religious organisations. The following are some of the major problem areas that should be ad-
dressed: ... It is not appropriate to require lengthy existence in the State before registration is
permitted; Other excessively burdensome constraints or time delays prior to obtaining legal
personality should be questioned.... See, further, Kimlya and Others v. Russia (2009). Also
see Article 6 of the United Nations Declaration on the Elimination of All Forms of Intolerance
and of Discrimination Based on Religion or Belief (UN GA Res.36/55 of 25November 1981);
and Freedom of Religion or Belief: Laws Affecting the Structuring of Religious Communities,
prepared under the auspices of the OSCE/ODIHR for the benefit of participants in the 1999
OSCE Review Conference.
166
Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (2001), para.92.
167
For example, in Balcik and Others v. Turkey (2007), para.44: The European Court of Human
Rights noted that states must refrain from applying unreasonable indirect restrictions upon
[the right to assemble peacefully].
168
Also see note 148, relating to the suspension of the Schengen Agreement, and note 215, relat-
ing to anticipatory measures taken by law-enforcement officials to stop, search and/or detain
protesters en route to an assembly. It is worth noting that in the United Kingdom case of R (on
the application by Laporte) (FC) v. Chief Constable of Gloucestershire [2006] HL 55; 2 AC 105,
the House of Lords held that the use of police common-law powers to prevent an anticipated
breach of the peace (by stopping and searching a bus carrying demonstrators to a protest at
an airbase, and escorting the bus back to its point of departure, thereby also detaining those
on the bus for several hours) was a disproportionate interference with the applicants rights
to freedom of assembly and expression (since it was both premature and indiscriminate). Fur-
thermore, the police reliance on their common-law powers to return the bus to London was
not prescribed by law: [I]t is not enough to justify action that a breach of the peace is antic-
ipated to be a real possibility (para.47). In addition, the UN Special Representative of the
Secretary-General on the Situation of Human Rights Defenders, Hina Jilani, has observed that
human rights defenders have been prevented from leaving the country by representatives of
the authorities at airports or border-crossings. In some of the cases, defenders have not been
issued with the documents needed in order to travel. A large number of communications
on this question have been sent to Eastern European and Central Asian States. [T]ravel
restrictions imposed on defenders in order to prevent them from participating in assemblies
of different kinds outside their country of residence is contrary to the spirit of the Declaration
[on Human Rights Defenders] and the recognition in its preamble that individuals, groups and
 147

associations have the right to promote respect for and foster knowledge of human rights and
fundamental freedoms at the national and international levels, UN Doc. A/61/312, op cit.,
note 93, paras.57-60.
169
Also see the Human Rights Committees General Comment No.25 (1996) on article 25 (Par-
ticipation in public affairs and the right to vote).
170
See, for example, Application no. 15405/04 by Juma Mosque Congregation and Others against
Azerbaijan, lodged on 28 April 2004; Tsonev Anguelov v. Bulgaria (2006).
171
Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (2001 para. 94).
172
For example, Patrick Coleman v. Australia (2006) CCPR/C/87/D/1157/2003, para.7.3 (the
Human Rights Committee considered a fine and a five-day custodial sentence to be a dispro-
portionate penalty for making a speech without a permit). Also see Ezelin v. France (1991)
(assembly), and Incal v. Turkey (1998) (expression). Also see David Mead, The New Law of
Peaceful Protest: Rights and Regulation in the Human Rights Era. op. cit., note 87, pp.104-105.
173
An example of such a defence is contained in Sections 6(7) and 6(8), Public Processions
(Northern Ireland) Act 1998. There may be a number of ways to provide for the reasonable
excuse defence in the law, but good practice suggests that words such as without reasona-
ble excuse should be clearly identified as a defence to the offence where it applies, and not
merely as an element of the offence that would have to be proved or disproved by the prose-
cution. See Preliminary Comments on the Draft Law On Amendments to Some Legislative
Acts of the Republic of Kazakhstan on National Security Issues, OSCE-ODIHR Opinion-Nr.
GEN-KAZ/002/2005, 18 April 2005.
174
Para.52. In Ziliberberg v. Moldova (2004) (admissibility, p.10), it was stated that an individual
does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or oth-
er punishable acts committed by others in the course of the demonstration, if the individual in
question remains peaceful in his or her own intentions or behaviour. Also see Gasparyan v. Ar-
menia (2009), para.43; Galstyan v. Armenia (2008), para.115; Ashughyan v. Armenia (2008),
para.90. In Cetinkaya v. Turkey (Application 75569/01, judgment of 27 June 2006, in French
only), the European Court of Human Rights found that the applicants conviction and fine for
mere participation in what the authorities later decided was an illegal assembly (in this case,
a press conference at which a statement critical of the authorities had been read out) consti-
tuted a violation of Article 11.
175
Ireland is one example where there is no requirement at all for prior notification for static pub-
lic assemblies (although organizers will generally notify the appropriate local police station).
See, further, Article 40 of the Irish Constitution (Bunreacht na hireann); Article 24 of the Con-
stitution (Amendment No. 17) Act, 1931 (power to proclaim public meetings); section 28 of the
Offences Against the State Act, 1939; and section 21 Criminal Justice (Public Order) Act, 1994
which empowers senior officers of the Garda Sochna to regulate access to a place where an
event likely to attract a large assembly of persons is taking, or is about to take, place. Similar-
ly, the Public Order Act 1986 in England and Wales does not require that prior notification be
given for open-air public meetings. Also see, in relation to the United States, Nathan W. Kel-
lum, Permit Schemes: Under Current Jurisprudence, what Permits are Permitted? Drake
Law. Review, Vol. 56., No. 2, Winter 2008, p. 381.
176
See UN Human Rights Committee, Kivenmaa v. Finland (1994). Also see the Human Rights
Committees Concluding Comments on Morocco [1999] UN doc. CCPR/79/Add. 113, para.24:
The Committee is concerned at the breadth of the requirement of notification for assemblies
148

and that the requirement of a receipt of notification of an assembly is often abused, resulting
in de facto limits of the right of assembly, ensured in article 21 of the Covenant. The require-
ment of notification should be restricted to outdoor assemblies and procedures adopted to
ensure the issue of a receipt in all cases. Available at: <http://w w w.unhcr.org/refworld/
countr y,,HRC ,,MAR ,456d621e2,3ae6b01218,0.html>.
177
Rassemblement Jurassien Unit Jurassienne v. Switzerland (1979), p.119.
178
See, further, Neil Jarman and Michael Hamilton, Protecting Peaceful Protest: The OSCE/ODI-
HR and Freedom of Peaceful Assembly, Journal of Human Rights Practice, Vol. 1, No. 2 , 2009,
p. 218.
179
See, for example, Nathan W. Kellum, Permit Schemes, op. cit., note 175, p. 425 , conclud-
ing that authoritative precedent supports the view that permit schemes should be limited in
scope and Individuals and small group gatherings should never be subjected to such tedi-
ous requirements.
180
In Kuznetsov v. Russia (2008), the European Court of Human Rights held (in para.43), that
merely formal breaches of the notification time-limit [were] neither relevant nor a sufficient
reason for imposing administrative liability. In this case, late notification did not prevent the
authorities from adequately preparing for the assembly.
See Balk and Others v. Turkey, para. 49, in which the European Court of Human Rights
181

suggests that state provision of such preventive measures is one of the purposes of prior no-
tification.
182
The Constitutional Court of Georgia has annulled part of a law (Article 8, para 5) that allowed
a body of local government to reject a notification (thus, effectively creating a system of prior
license rather than prior notification), Georgian Young Lawyers Association Zaal Tkeshelash-
vili, Lela Gurashvili and Others v. Parliament of Georgia (5 November 2002) N2/2/180-183.
Also see Mulundika and others v. The People, Supreme Court, Zambia, 1 BHRC 199 (10 Janu-
ary 1996); All Nigeria Peoples Party v. Inspector General of Police (Unreported, June 24, 2005)
(Fed HC (Nig)); and Rev. Christopher Mtikila v. Attorney-General, High Court of Tanzania at
Dodoma, Civil Case No. 5 of 1993. Vol.1 Commonwealth Human Rights Law Digest, 1996, p.11.
In the latter case, the Court held that the requirement of a permit in order to organise a public
meeting is unconstitutional for it infringes the right to freedom of peaceful assembly as guar-
anteed in the Constitution. Furthermore, in the Tanzanian context this freedom is rendered
the more illusory by the stark truth that the power to grant permits is vested in cadres of the
ruling party.
183
See Forsyth County, Georgia v. The Nationalist Movement 505 U.S. 123 (1992). Such a sys-
tem derives from United States jurisprudence, and approximates a notification system because
there is a legal presumption against denial of a permit absent a sufficient showing by the gov-
ernment. Also see Kellum, op. cit., note 175.
184
Such reforms have been welcomed by the European Court of Human Rights. See, for exam-
ple, Barankevich v. Russia (2007), para.28: The Court welcomes the amendment in 2004 of
the law on public assemblies, to which the Government referred, whereby the requirement of
prior authorisation was replaced by simple notification of the intended assembly.
185
Hyde Park v. Moldova (No.3) (2009), para.26.
186
See, for example, Hyde Park v. Moldova No.2 (2009), para.26: There was no suggestion that
the park in which the assembly was to take place was too small to accommodate all the various
events planned there. Moreover, there was never any suggestion that the organisers intended
 149

to disrupt public order or to seek a confrontation with the authorities or other groups meeting
in the park on the day in question. Rather their intention was to hold a peaceful rally in support
of freedom of speech. Therefore, the Court can only conclude that the Municipalitys refusal
to authorise the demonstration did not respond to a pressing social need.
187
See llinger v. Austria (2006), paras.43-51. This case provides guidance as to the factors po-
tentially relevant to assessing the proportionality of any restrictions on counter-demonstrations.
These include whether the coincidence of time and venue was an essential part of the mes-
sage of the counter-demonstration, whether the counter-protest concerned the expression of
opinion on an issue of public interest, the size of the counter-demonstration, whether the coun-
ter-demonstrators had peaceful intentions, and the proposed manner of the protest (the use
of banners, chanting, etc).
188
See European Court of Human Rights, Plattform rzte fr das Leben v. Austria (1988), para
32.
189
See Christian Democratic Peoples Party v.Moldova(no.2) (2010), para.28. Here, the Court
held that it was the task of the police to stand between the two groups and to ensure pub-
lic order Therefore, this reason for refusing authorisation could not be considered relevant
and sufficient within the meaning of Article 11 of the Convention.
190
See the judgment of the Hungarian Constitutional Court, Decision 75/2008, (V.29) AB, which
established that the right of assembly recognized in Article 62 para. (1) of the Hungarian Con-
stitution covers both the holding of peaceful spontaneous events (where the assembly can
only be held shortly after the causing event) and assemblies held without prior organization.
The Court stated that it is unconstitutional to prohibit merely on the basis of late notification
the holding of peaceful assemblies that cannot be notified three days prior to the date of the
planned assembly due to the causing event. Also see the Brokdorf decision of Federal Consti-
tutional Court of Germany, BVerfGE 69,315, p. 353, 354.
See, for example, Kivenmaa v. Finland, Communication No. 412/1990, UN Doc. CCPR/
191

C/50/D/412/1990 (1994), where the Human Rights Committee held that the gathering of
several individuals at the site of the welcoming ceremonies for a foreign head of State on an
official visit, publicly announced in advance by the State party authorities, cannot be regard-
ed as a demonstration. As has been noted elsewhere (see, for example, Nowak, UN Covenant
on Civil and Political Rights, op. cit., note 29), the dissenting opinion is more persuasive.
192
See, further, for example, Rai and Evans v. United Kingdom (2009): The present applicants
do not suggest they had insufficient time to apply for the authorisation and, given the subject
matter of their demonstration [the ongoing British involvement in Iraq] and the evidence of
their prior knowledge and planning, the time-limits set down in the 2005 Act did not constitute
an obstacle to their freedom of assembly. Also see Republic of Latvia Constitutional Court,
Judgment in the matter No. 2006-03-0106 (23 November 2006), para.30.2 (English transla-
tion).
193
See Bukta and Others v. Hungary (2007), para.32; and va Molnr v. Hungary (2008),
para.38.
194
Bukta v. Hungary (2007), para.36. Also see the subsequent decision of the Hungarian Consti-
tutional Court, Decision 75/2008, (V.29.) AB, finding that: ...it is unconstitutional to prohibit
merely on the basis of late notification the holding of peaceful assemblies that cannot be noti-
fied three days prior to the date of the planned assembly due to the causing event, Also see,
Oya Ataman v. Turkey (2006), paras.41 and 43. It is noteworthy that in the case of Aldemir and
Others v. Turkey (2007), the dissenting opinion of Judges Trmen and Mularoni stated that
150

the majority fail to provide any guidelines as to the circumstances under which non-compli-
ance with the regulations may justify intervention by the security forces. Also see Kuznetsov
v. Russia (2008) and Biici v. Turkey (2010), para.56, (see note 239 regarding excessive use
of force in the dispersal of assemblies).
195
See, for example, Makhmudov v. Russia (2007), para.68.
196
See, for example, the website of the Parades Commission in Northern Ireland, at: <http://
w w w.paradescommission.org/>. In Axen v. Germany (1983), which related to the issue of
fair trial, the European Court of Human Rights considered that in each case the form of pub-
licity to be given to the judgment under the domestic law of the respondent State must be
assessed in the light of the special features of the proceedings in question and by reference to
the object and purpose of Article 6(1).
197
See Baczkowski and Others v. Poland (2007), paras.68-78. Also see the determination of the
Constitutional Law of the Russian Federation on the appeal of Alexander Vladimirovich Lash-
mankin, Denis Petrovich Shadrin and Sergey Mikhailovich Shimovolos against the violation of
their Constitutional rights by the provision of Part 5, Article 5 of the Federal Law on Assem-
blies, Meetings, Demonstrations, Processions and Picketing, Saint-Petersburg (2 April, 2009),
affirming that the organizers of a public event were entitled to judicial remedy before the date
of the planned event. Also see Republic of Latvia Constitutional Court, Judgment in the mat-
ter No. 2006-03-0106 (23 November 2006), paras. 24.4.
198
See, for example, Makhmudov v. Russia (2007), para.68: In certain instances the respondent
Government alone have access to information capable of corroborating or refuting specific
allegations. The failure on a Governments part to submit such information without a satisfac-
tory explanation may give rise to the drawing of inferences as to the well-foundedness of the
applicants claims. In this case, the Government did not corroborate the affirmation with any
material or offer an explanation as to why it was not possible to produce evidence substanti-
ating their allegation. Also see the interlocutory appeal in Tweed v. Parades Commission for
Northern Ireland [2006] UKHL 53, where the Court held that the need for disclosure (of, in-
ter alia, police reports and an assessment of local circumstances by Authorized Officers of the
Parades Commission) will depend on a balancing of the several factors, of which proportion-
ality is only one, albeit one of some significance.
199
Article 14(3) of the UN Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognized Human Rights and Funda-
mental Freedoms provides that: The State shall ensure and support, where appropriate, the
creation and development of further independent national institutions for the promotion and
protection of human rights and fundamental freedoms in all territory under its jurisdiction,
whether they be ombudsmen, human rights commissions or any other form of national insti-
tution.
200
The European Court of Human Rights has articulated a broader interpretation of the free-
dom to receive information, thereby recognizing a right of access to information. See Sdruen
Jihoesk Matky c. la Rpublique tchque (2006, judgment in French only).
201
Also see, for example, the Resolution on the Increase in Racist and Homophobic Violence in
Europe, passed by the European Parliament on 15 June 2006, at para. L, which urges Member
States to consider whether their institutions of law enforcement are compromised by institu-
tional racism.
 151

202
See, for example, the Council of Europes European Code of Police Ethics (2001) and related
commentary, which sets out good practice principles for Member State governments in pre-
paring their internal legislation and policing codes of conduct.
203
See, generally, OSCE Human Dimension Commitments (2nd ed.), Volume 1,,Thematic Compi-
lation, (Warsaw: OSCE Office for Democratic Institutions and Human Rights, 2005), pp.7-8.
204
Plattform rzte fr das leben v. Austria (1988), para.32.
205
See, for example, Giuliani and Gaggio v. Italy (2009, referred to the Grand Chamber on 1 March
2010), para.204.
206
Donatella Della Porta and Herbert Reiter, The Policing of Global Protest: The G8 at Genoa
and its Aftermath, chapter 2 of Della Porta et al., (eds.), op. cit., note 107, p.38. Della Porta
and Reiter note that post-Genoa, a one-month course was held by sociologists and psycholo-
gists for police deployed in Florence.
207
See, for example, Article 15, UN Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights
and Fundamental Freedoms, which provides that The State has the responsibility to promote
and facilitate the teaching of human rights and fundamental freedoms at all levels of education
and to ensure that all those responsible for training lawyers, law enforcement officers, the per-
sonnel of the armed forces and public officials include appropriate elements of human rights
teaching in their training programme.
208
Issues around police training may be relevant in assessing whether a state has fulfilled its posi-
tive obligations under Article 2 of the ECHR. See, for example, McCann v. UK (1995), para.151
See also note 21, citing the Concluding Observations of the UN Human Rights Committee: Re-
public of Moldova CCPR/C/MDA/CO/2, 4 November 2009, para.8(d).
209
For example, the OSCE Guidebook on Democratic Policing, (2nd edition), (Vienna: Organi-
zation for Security and Co-operation in Europe, 2008); the UN Basic Principles on the Use of
Force and Firearms by Law Enforcement Officials; the Council of Europes European Code of
Police Ethics (2001); Amnesty Internationals, Ten Basic Human Rights Standards for Law En-
forcement Officials (AI Index: POL 30/04/98). The full text of the latter principles (available
at: http://web.amnesty.org/ librar y/ index/engpol30 0 041998) contains further useful
explanatory guidance relating to their implementation.
210
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT): The CPT Standards, CPT/Inf/E (2002) 1 - Rev. 2009, p.83, available at:
http://w w w.cpt.coe.int/en/documents/eng-standards.pdf.
211
Her Majestys Chief Inspector of the Constabulary (HMIC), Adapting to Protest: Nurturing the
British Model of Policing (London: Her Majestys Chief Inspector of the Constabulary, 2009),
p.54. In one United Kingdom example, the Metropolitan Police Service used Bluetooth messag-
ing as a means to communicate with protesters during the Tamil protests in 2009, explaining
the policing approach and stating their intention not to disperse protesters and to allow the pro-
test to continue. See Joint Committee on Human Rights, Demonstrating Respect for Rights: A
Human Rights Approach to Policing Protest? Follow-up: Governments Response to the Com-
mittees Twenty-Second Report of Session 2008-09 (London: HMSO, HL Paper 45; HC 328,
3 February 2010), p.7.
212
Joint Committee on Human Rights, Demonstrating Respect for Rights? Follow-up (London:
HMSO, HL Paper 141/ HC 522, 14 July 2009), para.14.
152

213
Ralph Crawshaw, Police and Human Rights: A Manual for Teachers, Resource Persons and
Participants in Human Rights Programmes (2nd Edition) (Leiden: Martinus Nijhoff Publish-
ers, 2009), p.237.
214
For example, in Giuliani and Gaggio v. Italy (2009),para.12, it was accepted by the parties that
the Carabinieri and police officers could not communicate directly among themselves by ra-
dio but could only contact the control room.
215
A violation of Article 11 of the ECHR was found in the case of Nisbet zdemir v. Turkey (no.
23143/04, judgment of 19 January 2010), where the applicant was arrested while on her way
to an unauthorized demonstration at Kadky landing stage in Istanbul in February 2003 to
protest against the possible intervention of United States forces in Iraq. The Court also found
a violation of the investigative obligation under Article 3. Also see notes 135 and 168, referring
to R (on the application by Laporte) (FC) v. Chief Constable of Gloucestershire [2006] HL 55;
2 AC 105, and UN Doc. A/61/312, op.cit., note 93, paras. 57-60.
216
See Article 11, Law on Assemblies, Poland (1990): (1)The communal authority may delegate
its representatives to an assembly; (2)When so requested by the organizer, the communal
authority shall, to the extent required and possible, secure police protection under provisions
of the Act of 6 April 1990 on the Police (JoL No. 30, item 179) to see to a proper progress of
the assembly, and may delegate its representative to attend the assembly; (3)Upon arriving
at the site of the assembly, the delegated representatives of the communal authority shall be
obliged to produce their authorization to the leader of the assembly.
217
Some Codes of Administrative Offences refer explicitly to active participation. Also see Zilib-
erberg v. Moldova (2004) (2004, admissibility), p. 11.
218
Kettling is the term used in the United Kingdom to describe a strategy of crowd management
that relies on containment.
219
Ziliberberg v. Moldova (2004, admissibility), p.10, citing Ezelin v. France (1989), para. 34.
220
See Solomou and Others v. Turkey (2008). Here, the European Court of Human Rights found
a violation of Article 2 in relation to the shooting of an unarmed demonstrator. The Turkish gov-
ernment argued that the use of force by the Turkish-Cypriot police was justified under Article
2(2) of the ECHR. In rejecting this argument, however, the Court regarded it to be of critical
importance that, despite the fact that some demonstrators were armed with iron bars, Mr. Sol-
omou himself was not armed and was peaceful.
221
See, further, note 135.
222
Joint Committee on Human Rights, op. cit., note 211, paras.28-29.
223
Article 9 of the ICCPR and Article 5 of the ECHR protect the right to liberty and security of per-
son. For example, in Gillan and Quinton v. the United Kingdom (2010), para.61 (citing Foka
v. Turkey, 2008, in which the applicant was subjected to a forced search of her bag by border
guards), the Court noted that any search effected by the authorities on a person interferes
with his or her private life. In Gillan and Quinton, the Court did not finally determine the is-
sue of whether Article 5 was engaged by the use of police stop-and-search powers under s.44
Terrorism Act 2000. A request for referral to the Grand Chamber in this case was pending at
the time of writing. Guenat v. Switzerland (1995) was a case involving detention for the pur-
pose of making enquiries (thus falling short of arrest). The police actions were found not to
have violated Article 5 of the ECHR. While not every restriction imposed on a persons liberty
will necessarily amount to a deprivation of liberty as stipulated in article 5 of the ECHR, any re-
strictions must be deemed strictly necessary and be proportionate to the aim being pursued.
 153

See, for example, Guzzardi v. Italy (1980), paras. 92-93: The difference between deprivation
of and restriction upon liberty is merely one of degree or intensity, and not one of nature
or substance. Moreover, restrictions on liberty may still constitute a violation of the right to
freedom of movement protected by Article 12 of the ICCPR and Article 2 of the Fourth Proto-
col of the ECHR.
224
See S. and Marper v. United Kingdom (2008), in which the blanket and indiscriminate nature
of powers concerning the retention of such data led the European Court of Human Rights to
find a violation of the right to private and family life.
225
Mammadov (Jalaloglu) v. Azerbaijan (2007).
226
Bukta and Others v. Hungary, (2007), para.36; and va Molnr v. Hungary (2008), para.36.
Also see the judgment of the Hungarian Constitutional Court, Decision 75/2008, (V.29) AB.
227
AI Index: POL 30/04/98 (see note 209).
228
Contrast, for example, the Courts assessment in Rai and Evans v. United Kingdom (2009,
admissibility) of the the reasonable and calm manner in which the police ended the demon-
stration with the Courts assessment of the police intervention in Samt Karabulut v. Turkey
(2009), paras.37-38, where the Court considered that the dispersal was quite prompt and
it was not satisfied that the applicant had sufficient time together with his fellow demon-
strators to manifest his views (citing Oya Ataman, 2006, paras.41-42; Balk and Others v.
Turkey, 2007, para.51, and cf. va Molnr v. Hungary, 2008, paras.42-43). Also see Kandzhov
v. Bulgaria (2008), para.73 (finding a violation of Article 10 ECHR): the applicants actions on
10 July 2000 were entirely peaceful, did not obstruct any passersby and were hardly likely to
provoke others to violence ... However, the authorities in Pleven chose to react vigorously and
on the spot in order to silence the applicant and shield the Minister of Justice from any public
expression of criticism.
229
The existence of a reasonable expectation of privacy is a significant, though not conclusive,
factor in determining whether the right to private and family life protected by Article 8 of the
ECHR is, in fact, engaged. See P.G and J.H. v. United Kingdom (2001), para.57. A persons pri-
vate life may be engaged in circumstances outside their home or private premises. See, for
example, Herbecq and Another v. Belgium (1998). In Friedl v. Austria (1995), the police pho-
tographed a participant in a public demonstration in a public place, confirmed his identity,
and retained a record of his details. They did so only after requesting that the demonstrators
disperse, and the European Commission held that the photographing did not constitute an in-
fringement of Article 8.
230
See, for example, Leander v. Sweden (1987), para.48; and Rotaru v. Romania [GC] (2000),
paras.43-44. In Amann v. Switzerland [GC] (2000), paras 65-67, the compilation of data by se-
curity services was held to constitute an interference with the applicants private lives, despite
the fact that covert surveillance methods were not used. Also see Perry v. the United Kingdom
(2003), para.38, and the United Kingdom case of Wood v. MPC [2009] EWCA Civ 414. Also
see the European Commission of Human Rights decisions in X v. UK (1973, admissibility) and
Friedl v. Austria (1995) regarding the use of photographs.
231
The confiscation and deletion of video footage has been raised in the pending case of Matasaru
v. Moldova (Application no.44743/08, lodged on 22 August 2008).
232
See, for example, the UK case of Wood v. MPC [2009] EWCA Civ 414.
233
Paragraph 13 of Resolution 690 on the Declaration on the Police adopted by the Parliamen-
tary Assembly of the Council of Europe in 1979 states that police officers shall receive clear
154

and precise instructions as to the manner and circumstances in which they may make use of
arms. Similarly, paragraph 1 of the UN Basic Principles on the Use of Force and Firearms by
Law Enforcement Officials provides that governments and law-enforcement agencies shall
adopt and implement rules and regulations on the use of force and firearms against persons
by law-enforcement officials. The European Court of Human Rights has noted that [a]s the
text of Article 2 itself shows, the use of lethal force by police officers may be justified in cer-
tain circumstances. Nonetheless, Article 2 does not grant a carte blanche. Unregulated and
arbitrary action by State agents is incompatible with effective respect for human rights. This
means that, as well as being authorised under national law, policing operations must be suffi-
ciently regulated by it, within the framework of a system of adequate and effective safeguards
against arbitrariness and abuse of force. See Giuliani and Gaggio v. Italy (2009), paras.204-5.
234
See Simsek v. Turkey (2005), para.91. In Gle v. Turkey (1998), the European Court of Human
Rights recognized that the demonstration was not peaceful (evidenced by damage to prop-
erty and injuries sustained by gendarmes). However, the Court stated that The gendarmes
used a very powerful weapon because they did not have truncheons, riot shields, water can-
non, rubber bullets or tear gas. The lack of such equipment is all the more incomprehensible
and unacceptable because the province is in a region in which a state of emergency has been
declared (emphasis added).
235
Principle 13, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
(adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treat-
ment of Offenders held in Havana (Cuba) from 27August to 7September 1990).
236
Ibid., Principle 14. In the case of Primov and Others v. Russia (Application no.17391/06 lodged
on 30 May 2006), the European Court of Human Rights has asked the Russian government to
provide information in relation to (inter alia) the following questions: What were the instruc-
tions given to the police dispatched to the villages of Usukhchay and Miskindzha on 25 April
2006? What was the legal framework for the polices actions in such situations, especially as
regards the use of force and special equipment (such as rubber truncheons, tear gas etc.)?
What was the original plan of the police operation? When and why did the police start the ac-
tive phase of the operation? How many policemen were employed to disperse the rally? Did
they use automatic rifles, and, if so, why? How many shots were fired/cartridges used? Where
did they aim? Did the police use tear-gas bombs and stun grenades? Did they throw them in
the midst of the crowd, as the applicants described? What injuries were received by the dem-
onstrators and policemen? Has there been any official investigation (disciplinary, criminal, etc.)
into the police operation (distinct from the investigation into the alleged riot itself), and, if so,
what were its results?
237
See, for example, Giuliani and Gaggio v. Italy (2009), paras.204-205, citing McCann and Oth-
ers v. UK, paras.148-149.
238
See Ireland v. the United Kingdom (1978), para.161.
239
See Balk and Others v. Turkey (2007), para.28. In this case, the Court found a violation of
Article 3 in relation to two applicants; and a Violation of Article 11. The Court held that the Gov-
ernment failed to furnish convincing or credible arguments which would provide a basis to
explain or to justify the degree of force used (concerning a demonstration for which notifica-
tion had not been provided, in which the 46 participants refused to obey a police request to
disperse, whereupon, after approximately half an hour, the police dispersed the demonstra-
tion using truncheons and tear gas). See also Biici v. Turkey (2010), para.50-58 (violation of
Article 3 and Article 11 of the ECHR).
 155

240
See Saya and Others v. Turkey (2008), in which the Court found a violation of Article 3 of the
ECHR (both substantively and procedurally, but only in relation to some of the applicants).
In this case, the Government failed to furnish convincing or credible arguments which could
provide a basis to explain or to justify the degree of force used against the applicants, whose
injuries are corroborated by medical reports. Also see Eki and Ocak v. Turkey (2010). In this
case, the applicants and approximately 50 others took part in a commemoration ceremony
marking the events of Bloody May Day (1 May 1977), when 34 people died on Taksim Square
in Istanbul. The Court found a violation of Article 3 (regarding their treatment and the ensu-
ing police investigation) and Article 1,1 on the basis that they were ill-treated by police officers
during the forced dispersal of their demonstration.
241
In this regard, the European Court of Human Rights has held that the use of force by agents of
the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention
may be justified where it is based on an honest belief which is perceived, for good reasons, to
be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would
be to impose an unrealistic burden on the State and its law enforcement personnel in the ex-
ecution of their duty, perhaps to the detriment of their lives and those of others. (emphasis
added). See, for example, Giuliani and Gaggio v. Italy (2009), paras.204-205 citing McCann
and Others v. UK, paras.148-149.
242
OSCE, Guidebook on Democratic Policing, op. cit., note 209.
243
In Oya Ataman v. Turkey (2006), the European Court of Human Rights held there to have
been no violation of Article 3, but found that there was a violation of Article 11. The case con-
cerned an assembly for which no notification had been given (with 40-50 participants) to
protest against plans for F-type prisons. The group refused to disperse following a police
request, and the police used pepper spray. The Court noted that neither tear gas nor pepper
spray were considered chemical weapons under the Convention on the Prohibition of the De-
velopment, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction
(1993). It further noted that pepper spray, used in some Council of Europe Member States
to keep demonstrations under control or to disperse them in case they get out of hand may
produce side-effects such as respiratory problems, nausea, vomiting, irritation etc etc.
244
One example of such guidance is that issued by the Police Service of Northern Ireland, Serv-
ice Guidance in relation to the Issue, Deployment and Use of Attenuating Energy Projectiles
(Impact Rounds) in Situations of Serious Public Disorder, available at: <http://w w w.ser ve.
com/pfc/policing/plastic/aep06.pdf>. This document states that The AEP has not been
designed for use as a crowd control technology but has been designed for use as a less lethal
option in situations where officers are faced with individual aggressors whether such aggres-
sors are acting on their own or as part of a group (para.2(4)(a)). Also see Association of Chief
Police Officers (ACPO) Attenuating Energy Projectile (AEP) Guidance (Amended 16th May
2005), available at: <http://w w w.ser ve.com/pfc/policing/plastic/aep.pdf>.
245
To ensure comprehensive reporting of uses of non-deadly force, agencies should define force
broadly. See, further, for example, Principles for Promoting Police Integrity, United States
Department of Justice (2001), available at: http://w w w.ncjrs.gov/pdffiles1/ojp/186189.
pdf, pp.5-6, para.7, Use of Force Reporting.
246
UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, para.1;
Also see, for example, Simsek and Others v. Turkey (2005), para.91.
247
United States Department of Justice, Principles for Promoting Police Integrity, op. cit., note
245, paras.1 and 4.
156

248
Solomou and Others v. Turkey (2008), para.46.

249
In a number of countries (including Hungary, Sweden, Moldova and the United Kingdom)
high-profile inquiries have been instigated in the aftermath of misuse of police powers dur-
ing public demonstrations. Their recommendations have emphasized, among other things,
the importance of narrowly framed powers (see, for example, note 7), and rigorous training
of law-enforcement personnel (see paras.147-148) See, for example, Report of the Special
Commission of Experts on the Demonstrations, Street Riots and Police Measures in Septem-
ber-October 2006: Summary of Conclusions and Recommendations (Budapest: February
2007), available at: <http://www.gonczolbizottsag.gov.hu/jelentes/gonczolbizottsag _ je-
lentes_eng.pdf>; and Joint Committee on Human Rights, Demonstrating Respect for Rights:
A Human Rights Approach to Policing Protest (Volume 1) op. cit., note 7, and Her Majestys
Chief Inspector of the Constabulary, op. cit., note 211. In Moldova, in the aftermath of violence
occurring at election-related demonstrations on 6-7 April 2009, a parliamentary commission
was established to investigate the causes and effects of the April events. The commission was
composed of the deputies and civil society representatives. Its comprehensive report examined
the police response during and after the demonstrations and made a number of recommen-
dations aimed at improving policing practices in Moldova.

250
For further details, see <http://w w w.nipolicingboard.org.uk/ index/publications/ hu-
man-rights-publications/content-previous_hr_publications.htm>.

251
See, for example, the CPT report on its visit to Italy in 2004, published on 17 April 2006, re-
garding the events that took place in Naples (on 17 March 2001) and in Genoa (from 20 to 22
July 2001), and actions taken in response to the allegations of ill-treatment made against the
law-enforcement agencies. The CPT stated that it wished to receive detailed information on
the measures taken by the Italian authorities to prevent the recurrence of similar episodes in
the future [relating, for instance, to the management of large-scale public-order operations,
training of supervisory and operational personnel and monitoring and inspection systems].

252
See McCann and others v. UK (1995), para.161; Kaya v. Turkey (1998), para.105; Kelly and oth-
ers v. UK (2001), para.94, Shanaghan v. UK (2001), para.88; Jordan v. UK (2001), para.105;
McKerr v. UK (2001), para.111; and McShane v. UK (2002), para.94. Also see Gle v. Turkey
(1998), where the applicants son was killed by security forces, who fired on unarmed dem-
onstrators (during a spontaneous, unauthorized demonstration) to make them disperse. The
European Court of Human Rights found a violation of Article 2 on two grounds: (a) the use
of force was disproportionate and not absolutely necessary, and (b) there was no thorough
investigation into the circumstances. The Court stated that neither the prevalence of violent
armed clashes nor the high incidence of fatalities can displace the obligation under Article 2
to ensure that an effective, independent investigation is conducted into deaths arising out of
clashes involving the security forces, or, as in the present case, a demonstration, however ille-
gal it may have been (para.81). In Saya and Others v. Turkey (2008), a Health Workers Trade
Union march on May Day (for which authorization had been obtained) was stopped by police
and forcefully dispersed. The applicants were taken into custody and released the next day. The
European Court of Human Rights found that there had been a failure to carry out an effective
and independent investigation into the allegations of ill-treatment (Administrative Councils,
in this case, were not independent, since they were chaired by governors and composed of lo-
cal representatives of the executive and an executive officer linked to the very security forces
under investigation).
 157

253
Kelly and others v. UK (2001), para.94; Shanaghan v. UK (2001), para.88; Jordan v. UK (2001),
paras. 107 and 115; and McShane v. UK (2002), para. 94.
254
Osman v. UK (1998), para.116.
255
Muradova v. Azerbaijan (2009), para.99.
256
Also see Simsek and Others v. Turkey (2005), para.91.
257
For example, United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (2005).
258
This legislation draws upon recommendations contained in the Report of the Goldstone Com-
mission, Towards Peaceful Protest in South Africa (Heymann 1992).
259
For example, Article 3, Law on Assemblage and Manifestations in the Republic of Georgia
(1997, as amended 2009) defines separate roles for Principal, Trustee, Organizer, and
Responsible Persons.
260
See, for example, Republic of Latvia Constitutional Court, Judgment in the matter No. 2006-
03-0106 (23 November 2006), para.34.4 (English translation): The requirement to appoint
extra keepers of public order in all the cases, when peaceful process of the activity is endan-
gered, exceeds the extent of the collaboration duty of a person.
261
See, for example, Ibid., If too great a responsibility before the activity, during it or even after
the activity is laid on the organizer of the activity then at other time these persons will ab-
stain from using their rights, fearing the potential punishment and additional responsibilities.
262
See, inter alia, Castells v. Spain (1992) at para.43; Thorgeir Thorgeirson v. Iceland (1992) at
para.63.
263
See, for example, Observer and Guardian v. UK (1991), para.59(b).
264
The Guidelines of the Committee of Ministers of the Council of Europe on Protecting Free-
dom of Expression and Information in Times of Crisis (adopted by the Committee of Ministers
on 26 September 2007 at the 1005th meeting of the Ministers Deputies) define media pro-
fessionals (in para.1) as all those engaged in the collection, processing and dissemination of
information intended for the media. The term includes also cameramen and photographers,
as well as support staff such as drivers and interpreters.
265
The European Court of Human Rights has repeatedly recognized civil societys important contri-
bution to the discussion of public affairs. See, for example, Steel and Morris v. United Kingdom
(2005), para.89: in a democratic society even small and informal campaign groups, such as
London Greenpeace, must be able to carry on their activities effectively and there exists a
strong public interest in enabling such groups and individuals outside the mainstream to con-
tribute to the public debate by disseminating information and ideas on matters of general public
interest. Also see Trsasg a Szabadsgjogokrt v. Hungary (2009), para.36, in which the
Hungarian Civil Liberties Union was regarded as performing the role of a social watchdog.
266
Recent examples of such reports include: Breakdown of Trust A Report on the Corrib Gas
Dispute (Frontline, 2010), available at: <http://www.frontlinedefenders.org/node/2527>;
and Freedom of Assembly: Review of the Situation, Russia 2008 (Demos Center, Youth Hu-
man Rights Movement, Movement of Civil Actions GROZA, and Interregional Human Rights
Group), available at http://article20.org. Also see paragraph 3 of the European Unions En-
suring Protection European Union Guidelines on Human Rights Defenders: Human rights
defenders are those individuals, groups and organs of society that promote and protect uni-
versally recognised human rights and fundamental freedoms. Human rights defenders seek
the promotion and protection of civil and political rights as well as the promotion, protection
158

and realisation of economic, social and cultural rights. Human rights defenders also promote
and protect the rights of members of groups such as indigenous communities. The definition
does not include those individuals or groups who commit or propagate violence. Available at:
<http://ue.eu.int/uedocs/cmsUpload/GuidelinesDefenders.pdf>. Furthermore, Article
5 of the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs
of Society to Promote and Protect Universally Recognized Human Rights and Fundamental
Freedoms provides that: For the purpose of promoting and protecting human rights and
fundamental freedoms, everyone has the right, individually and in association with others, at
the national and international levels: (a) To meet or assemble peacefully. Also see Articles 6
and 8(2). As the UN Special Rapporteur on the situation of Human Rights Defenders has re-
marked: Social action for the realization of rights is increasingly manifested through collective
and public action [T]his form of protest or resistance to violations has become most vulnera-
ble to obstruction and repression. Collective action is protected by article 12 of the Declaration
on Human Rights Defenders, which recognizes the right to participate, individually or in asso-
ciation with others, in peaceful activities against violations of human rights and fundamental
freedoms and entitles those reacting against or opposing actions that affect the enjoyment
of human rights to effective protection under national law. Read together with article 5, recall-
ing the right to freedom of assembly, and article 6 providing for freedom of information and
its dissemination, peaceful collective action is a legitimate means of drawing public attention to
matters concerning human rights. See UN Doc. A/HRC/4/37, op.cit, note 93, para.29, avail-
able at: Also see OSCE: Human Rights Defenders in the OSCE Region: Challenges and Good
Practices (Warsaw: OSCE Office for Democratic Institutions and Human Rights, 2008), avail-
able at: <http://w w w.osce.org/publications/odihr/20 08/12/ 35711_1217_en.pdf>.
267
See, for example, Note by the Secretary-General on Human rights defenders: Promotion
and protection of human rights: human rights questions, including alternative approaches for
improving the effective enjoyment of human rights and fundamental freedoms (A/62/225
Sixty-second session), paras. 91-92, regarding the monitoring role performed by the OHCHR
during the April 2006 protests in Nepal: The OHCHR monitoring role has been acknowl-
edged as fundamental in containing human rights violations and in documenting those that
occurred for accountability purposes. See, further, Office of the High Commissioner for Hu-
man Rights, The April protests: democratic rights and the excessive use of force, Findings of
OHCHR-Nepals monitoring and investigations, Kathmandu, September 2006.
268
See, for example, Christina Loudes, Handbook on Observations of Pride Marches (Brussells:
ILGA-Europe, 2006). Also see Jennifer Prestholdt, Familiar Tools, Emerging Issues: Adapting
traditional human rights monitoring to emerging issues (Minneapolis: Center for Victims of
Torture, 2004). Available in Russian, Polish, Ukrainian, Kyrgyz and English at: <http://w w w.
newtactics.org/en/ FamiliarToolsEmergingIssues>.
269
See, OSCE-ODIHR Handbook on Monitoring Freedom of Peaceful Assembly, publication pend-
ing.
270
See, inter alia, Castells v. Spain (1992), para.43; and Thorgeir Thorgeirson v. Iceland (1992),
para.63.
Miklos Haraszti (OSCE Representative on Freedom of the Media) Special Report:
271

Handling of the media during political demonstrations, Observations and Recommenda-

tions, (OSCE, Vienna, June 2007), available at: <http://w w w.osce.org/documents/
r fm/20 07/06/25176 _en.pdf>, in English, and at: <http://w w w.osce.org/documents/
r fm/20 07/06/25176 _ru.pdf>, in Russian.
 159

272
Justice Thomas Berger, Justice of the Supreme Court of British Columbia (1980).
273
In the roundtable sessions held during the drafting of the first edition of these Guidelines, ev-
idence was presented that, in some jurisdictions, law-enforcement agencies had destroyed
property belonging to media personnel. Such actions must not be permitted.
274
Op. cit., note 271.
275
Article 2, First Optional Protocol to the ICCPR. See, for example, J.R.T. v. Canada, No.104/1981,
at para.8(a). In Lubicon Lake Band v. Canada No.167/1984, the Committee stated, however,
that it had no objection to a group of individuals, who claim to be similarly affected, collec-
tively to submit a communication about alleged breaches of their rights.
276
The Special Rapporteur has indicated that among her priorities will be analysis of the ob-
stacles and challenges to defenders exercise of the rights set forth in the Declaration on the
Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Pro-
tect Universally Recognized Human Rights and Fundamental Freedoms, particularly freedom
of association and freedom of peaceful assembly. See A/63/288 Human Rights Defenders
Note by the Secretary General, 14 August 2008. Available at <http://daccess-dds-ny.un.org/
doc/ UNDOC/GEN/ N08/461/09/ PDF/ N0846109.pdf?OpenElement>.
277
See, for example, Makhmudov v. Russia (2007) where the Russian government unsuccessfully
argued that the applicant had not exhausted domestic remedies because he had not com-
plained to a prosecutor about an alleged violation of his right to freedom of assembly. Since,
in the Russian legal system, the prosecutor was not required to hear representations from a
complainant not party to any proceedings, a complaint to a prosecutor was not a remedy to
be exhausted. In Galstyan v. Armenia (2007), the European Court of Human Rights held that
the mere possibility of applying to a prosecutor with a request to lodge a protest with a judge
(who may then quash an administrative penalty) was clearly not an effective remedy for the
purposes of Article 35(1) of the Convention since it is not directly accessible to a party and
depends on the discretionary powers of a prosecutor. Furthermore, the provision for a re-
view by the Chairman of a Superior Court who may quash or modify the penalty was regarded
merely as a power of review rather than a right to appeal (the wording of the provision did
not explicitly state that an appeal can be lodged against, which was the wording ordinarily
used in Armenia in the context of both criminal and civil procedure) (para.41). In Hyde Park
v. Moldova (No.1) (2009), in para.31, the Court disregarded the reasons cited for restricting
an assembly because they were contained in decisions given by the courts long after the date
planned for the demonstrations.
278
Bczkowski and Others v. Poland (2007) in para.79 (although some discretion is afforded in
relation to the manner in which Contracting States comply with their obligations under Article
13 of the ECHR).
279
Djavit An v. Turkey (2003) in paras.28 and 37; Galstyan v. Armenia (2007) in para.38: un-
der Article 35 the existence of remedies which are available and sufficient must be sufficiently
certain not only in theory but also in practice, failing which they will lack the requisite accessi-
bility and effectiveness.
280
Ibid. It is noteworthy that applications for retrial or similar extraordinary remedies, remedies
which depend on the discretionary powers of public officials, and remedies which have no pre-
cise time-limits, have all been found insufficient for the purposes of Article 35(1).
281
Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (1998, admissibility);
Balkani v. Bulgaria (2007); Bczkowski and Others v. Poland (2007) in para.82. See also Ap-
160

plications nos. 4916/07, 25924/08 and 14599/09 by Nikolay Aleksandrovich Alekseyev against
Russia lodged on 29 January 2007, 14 February 2008 and 10 March 2009, respectively, argu-
ing that the time-limits for lodging a notice for the proposed event (no earlier than 15 days and
no later than 10 days before the date of the event) did not allow him to obtain a final judicial
decision on the lawfulness of the ban.
282
Examples of organizations or groups that have lodged applications relating to freedom of as-
sembly include Christians Against Racism and Fascism, Plattform rzte fr das Leben, Stankov
and the United Macedonian Organisation Ilinden.
283
See generally, Philip Leach, Taking a Case to the European Court of Human Rights, 2nd Edi-
tion (Oxford: Oxford University Press, 2005). In the case of Hajibeyli v. Azerbaijan (2008),
for example, the applicants Article 11 complaint was declared inadmissible since the demon-
stration in question occurred before the ECHR entered into force in Azerbaijan.
284
Djavit An v. Turkey (2003) in para.28 (citing Akdivar and Others v. Turkey, 1996 in paras.65-67).